Jane Brantner v The Trustee for Rodney Cox Family Trust and the Trustee for Stocker Family Trust T/A Veritas Recruitment Clayton Partnership

[2021] FWC 5491

[2021] FWC 5491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jane Brantner
v
The Trustee for Rodney Cox Family Trust and the Trustee for Stocker Family Trust T/A Veritas Recruitment Clayton Partnership
(C2021/3138)

COMMISSIONER YILMAZ MELBOURNE, 3 SEPTEMBER 2021

Application to deal with contraventions involving dismissal.

[1] Mrs Jane Brantner submits that while on a two-week placement as a receptionist with Casey Aged Care her employment was terminated on 16 April 2021. The Trustee for Rodney Cox Family Trust and the Trustee for Stocker Family Trust T/A Veritas Recruitment Clayton Partnership (Veritas) is a recruitment agency and Mrs Brantner’s employer. It submits that the two-week placement with Casey Aged Care came to an end, that Mrs Brantner was not dismissed and that she remains registered as a casual for temporary placement. Mrs Brantner filed this general protections’ application on 2 June 2021, 47 days after the alleged dismissal.

[2] I scheduled the jurisdiction and extension of time hearing for 12 August 2021. Both parties were self-represented.

[3] Section 366(1) of the Fair Work Act 2009 (the Act) requires that an application under s.365 be made within 21 days after the dismissal takes effect, or in such further time as the Commission may allow. However, as Veritas challenges the jurisdiction of the Commission on the basis that Mrs Brantner was not dismissed, this matter requires determination firstly.

Applicant’s submissions on the matter of dismissal

[4] Mrs Brantner submits that she was dismissed between 9.30am – 9.55am on 16 April when she went to see the manager at Casey Aged Care to make a bullying complaint against a co-worker. She submits that after she made the complaint, the manager raised her voice, supported the co-worker and then directed her to pack her bag and leave. Mrs Brantner submits when you are directed to pack your bags and leave now, prior to the completion of the shift then it is a dismissal. 1

[5] Mrs Brantner also submits that the placement was for a two-week period, but there was an expectation that the placement may become more permanent.
Respondent’s submissions on the matter of dismissal

[6] Veritas submit that Mrs Brantner is a casual employee registered with Veritas and was placed on a two-week temporary assignment. It submits that there was no prospect of ongoing work with Casey Aged Care - its client, as the temporary placement was for the purpose of backfilling a vacancy while the client directly recruited a permanent replacement. 2 Veritas tendered in evidence its email to Mrs Brantner dated 1 April 2021 which detailed the temporary assignment details, a copy of the service agreement between the Applicant and Respondent and the Veritas Recruitment Assignment Confirmation sent to the client which confirmed the dates of the assignment along with other terms.3

[7] Veritas tendered email correspondence between the parties which confirmed that Mrs Brantner did not complete the last day of the temporary assignment but had been paid for the balance of the day. Veritas submit that Mrs Brantner was paid for the balance of the temporary assignment and that her employment was not dismissed.

Was Mrs Brantner dismissed?

[8] Section 365 of the Act deals with applications before the Commission and contains two limbs, one that there is a dismissal and secondly that the applicant alleges that the dismissal occurred because of a contravention of general protections. Relevantly the Act provides:

Application for the FWC to deal with a dismissal dispute

If:

(a)  a person has been dismissed; and

(b)  the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

[9] The term “dismissed” in s.365 of the Act is defined in s.386 of the of the Act. 4 A dismissal is at the initiative of the employer. (my emphasis) Section 386 provides:

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) …………

[10] Firstly, to make a general protections’ involving dismissal application the person must have been dismissed as defined by the Act. Before exercising its powers under s.368 of the Act, the Commission must establish that the person was dismissed by the person’s employer. 5

[11] A dismissal at the employer’s initiative is where the employer’s actions directly and consequently result in the termination of the employment relationship, and had the employer not taken such action, the employee would have remained in employment. 6 Further, s.386 excludes certain situations from the definition of dismissed. Those situations include:

•  employment for a specified time

•  a specified task

•  a duration of a specified season

•  on completion of a task, or

•  at the end of the season.

[12] The uncontested evidence is that Mrs Brantner was employed by Veritas and entered a Service Agreement to work at Casey Aged Care for a two-week placement. In this case, Casey Aged Care was the client of Veritas and at no time was it the employer. The Service Agreement signed by Mrs Brantner on 29 March 2021 states that Veritas is the employer, Mrs Brantner is a casual employee engaged to undertake work for Veritas clients as required. Mrs Brantner was entitled to accept or refuse a casual engagement offered to her. The Service Agreement further confirms the terms for casual engagements including that continuing employment is not expected, that assignments may be cancelled by either party and that each assignment is a separate and distinct engagement.

[13] I am satisfied that Veritas is the employer and that Mrs Brantner was engaged as a casual for a temporary assignment with a client. On the last day of the assignment, Mrs Brantner alleges that when she approached the manager at the client site to complain against a co-worker, that she was directed to leave the workplace; this she describes as the dismissal. Veritas submits that its client disputes the allegations made by Mrs Brantner. Mrs Brantner’s allegations are contested and while not tested at hearing, it is not necessary to make any findings regarding the allegations. It is necessary to determine the jurisdictional objection whether Veritas dismissed Mrs Brantner.

[14] There is no evidence that Veritas caused the direction that Mrs Brantner leave the workplace, and more to the point there is no evidence that Veritas dismissed her employment. Veritas submit that the client contacted Veritas and advised that Mrs Brantner had finished for the day due to an incident and that both agreed that it would be best that she finish up. 7 Despite concluding the placement before the expected completion time, Veritas paid Mrs Brantner for the balance of the placement period. The fact that Mrs Brantner ceased working for Casey Aged Care prior to the expected completion time, does not mean that she was dismissed at the initiative of her employer Veritas. The placement concluded early in the day on 16 April 2021 according to the terms of the contract, and Mrs Brantner was not dismissed by Veritas on that day.

[15] During the hearing, Veritas gave evidence that Mrs Brantner was still on the books and after the Casey Aged Care assignment concluded, she was contacted to confirm her availability for placement “in other temporary assignments as they may arise”. 8 Mrs Brantner confirmed the evidence that she declined an offer made earlier in the week for casual work to commence after the placement. Based on the terms of her employment with Veritas, she is entitled to reject placements offered to her.

[16] The fact that Casey Aged Care elected to shorten the placement, did not amount to a dismissal by the employer. A dismissal must be made at the initiative of the employer for it to be a valid dismissal and in Mrs Brantner’s situation there is no evidence of a dismissal at the initiative of Veritas. In labour hire arrangements, it is not unusual to find arrangements which allow clients the discretion to affect the periods of the engagement of the labour hire employee, and in this instance, this was clearly confirmed with Mrs Brantner in the Service Agreement and in emails to her which confirmed the details of the assignment prior to her placement.

[17] It is not contested that Mrs Brantner is a casual employee and the evidence relating to her engagement for the placement confirms in writing the terms and that there is no firm commitment to continuing employment. During the hearing Mrs Brantner alleged that her “dismissal” resulted in the loss of ongoing permanent employment at Casey Aged Care. In response to the Commission’s questions in light of the email attachment to the application where Mrs Brantner states that she could not wait for her two weeks to end with Casey Aged Care, 9 Mrs Brantner confirmed that there was no arrangement made for permanent employment nor did she apply to be considered for the client’s receptionist vacancy.

Jurisdictional objection – out of time.

[18] Veritas object to the application on the basis that the application was made more than 21 days after the alleged dismissal. The application was filed in the Commission on 2 June 2021. This means that if Mrs Brantner was dismissed pursuant to the Act, the application is 26 days late.

[19] General protections’ applications involving dismissal must be made within 21 days of termination.

[20] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[21] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 10 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 11

[22] I have found that Mrs Brantner was not dismissed pursuant to the Act, nevertheless, Veritas object to the application on the basis of it being out of time in the event they do not succeed with the objection on the grounds that there was no dismissal. Mrs Brantner made submissions regarding her out of time application, and I now turn to her arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[23] The general protections involving dismissal application was lodged with the Commission on 2 June 2021, 26 days late.

[24] Mrs Brantner submits that she had suffered mental health issues as a consequence of the alleged bullying on her last day of the placement. The evidence she relies on is a medical certificate from her general practitioner that states that she suffers from anxiety/depression and that she is taking medication and undergoing psychotherapy. The certificate provides no detail regarding her incapacity to file an application and no other evidence was tendered. No evidence was tendered in support of Mrs Brantner’s submissions that she could not function. 12 Veritas challenge the mental state of Mrs Brantner as a reason for the delay as she sent emails demanding payment for six weeks compensation and an apology, firstly from Casey Aged Care, and then communicated with Veritas in writing following the conclusion of her placement.13

[25] The evidence that Mrs Brantner relies on to explain her delay does little to explain or support her delay. While she submits that she could not and still cannot function, could not think straight and took a long time to complete the application in writing, she had no difficulty in arguing her case at the hearing before me, and the email correspondence tendered in evidence contradicts her submissions. Consequently, I cannot find this consideration to weigh in her favour.

Steps taken to dispute the termination

[26] Mrs Brantner provided no evidence of her challenging her “dismissal”. Mrs Brantner did provide emails about her observations regarding her time with Casey Aged Care, but there is no evidence of disputation of a termination of her employment by Veritas.

[27] I find this consideration does not weigh in her favour.

Prejudice to the employer

[28] Other than Mrs Brantner alleging that the delay does not prejudice the Respondent, Veritas allege that it is unduly dealing with a matter without any legal basis.

[29] The disadvantage caused by the delay is not enough to support an argument of prejudice however, the absence of prejudice does not weigh in Mrs Brantner’s favour, therefore this consideration is neutral.

Merits of the application

[30] Mrs Brantner contends that her employment was terminated after she complained about an alleged bullying incident. The bullying allegations by Mrs Brantner are contested and, in any event, the merits largely concern a client of Veritas rather than Veritas itself.

[31] While merit is a consideration, contested evidence relating to merit is not to be tested in an extension of time application, however, where an application appears to be highly meritorious, it is relevant to the discretion of the decision maker. 14 Based on the limited evidence and submissions, I have formed the preliminary view that the case will turn on highly contested allegations of bullying against a client and whether the adverse action was a dismissal. As I have found that there was no dismissal and the temporary placement came to an end, the application appears not to be strong on merit, and at best this consideration is neutral.

Fairness between the person and other persons in a like position

[32] Neither party addressed this consideration adequately therefore I find this consideration neutral.

Conclusion

[33] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. The bar is high for an extension of time and having considered each of the factors set out in s.366(2) of the Act, on balance I do not find there to be exceptional circumstances warranting an extension of time.

[34] Additionally, Veritas raise a jurisdictional objection that Mrs Brantner was not dismissed, and my view is that she was not dismissed as defined by the Act. Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Mrs J. Brantner for herself

Ms G. Stocker for the Respondent

Hearing details:

2021
Melbourne (by telephone)
12 August

Printed by authority of the Commonwealth Government Printer

<PR733512>

 1   Applicant’s outline of submissions at Q1a and transcript at 22:15.

 2   Respondent’s outline of submissions attachment emails between Veritas and the client dated 13 and 15 April 2021 and 41.10.

 3   Attachments to the Respondent’s outline of submissions.

 4   See Part 1-2 – Definitions in s.12 of the Fair Work Act 2009.

 5   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].

 6   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.

 7   Respondent’s outline of argument at 1b.

 8   Email of 16 April 2021 from Veritas to Mrs Brantner at 11:17am.

 9   Email of 19 April 2021 from Mrs Brantner to Veritas at 4:24pm.

 10   [2011] FWAFB 975.

 11 Ibid at [13].

 12   Applicant’s outline of argument at 1d.

 13   A selection of the emails were tendered in evidence from both the Applicant and Respondent.

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 and Haining v Deputy President Drake (1998) 87 FCR 248, 250.