Lynn Syme v Eni Industries Pty Ltd T/A AH Fabrication

[2013] FWC 6061

[2013] FWC 6061

The attached document replaces the document previously issued with the above code on 27 August 2013.

“Annexure A” which was inadvertently omitted from the original document, has been inserted at the end of the document.

Erin Bulluss

Associate to Commissioner Lee

Dated 30 August 2013

[2013] FWC 6061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Lynn Syme
v
ENI Industries Pty Ltd T/A AH Fabrication
(C2013/3745)

COMMISSIONER LEE MELBOURNE, 27 AUGUST 2013

Application to deal with contraventions involving dismissal - extension of time for lodgement of application - ss. 365, 366 Fair Work Act 2009.

[1] On 26 March 2013, Ms Lynne Syme (the Applicant) made an application pursuant to section 365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed in contravention of Part 3-1 of the Fair Work Act 2009 (The Act) by ENI Industries Pty Ltd T/A AH Fabrication.

[2] An application made under s.365 must also comply with s.366 of the Act.

[3] Section 366 of the Act states;

“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.”

[4] The matter for determination is whether or not this application meets the requirements of section 366 of the Act.

Background

[5] The Applicant, in her Form F8 Application for FWA to Deal with a General Protections Dispute (Form F8) listed the date of dismissal as 6 December 2011.

[6] In the Form F8A Employer’s Response to Application for FWA to Deal with a General Protections Dispute (Form F8A), the Respondent stated that he did not agree to the information given the Applicant’s Form F8. The response included “The respondent has never employed the applicant”.

[7] The matter was listed for conference before me on 16 May 2013. There was no resolution of the dispute at conference. The Respondent was clear that the application could not be made as the Applicant was never an employee of the Respondent and that, in any case, the application was made some 14 months out of time.

[8] I subsequently issued a Statement and Directions on 17 May 2013 which included the following:

“This matter involves complex facts. However, from the Applicant’s version of events, the application is out of time for lodgement (as set out in section 366(1) of the Act above), by more than thirteen months.

It has been agreed that the parties will file written submissions on the question of whether an extension of time should be allowed, in accordance with the timetable below.

It was further agreed that I will determine the matter based on the written submissions filed.”

[9] I have received submissions from both the Applicant and the Respondent in accordance with the directions issued.

[10] The central submission from the Applicant relates to what she alleges to be the history of the Respondent company allegedly re-establishing itself. This is the second application that the Applicant has made to the Commission under section 365 of the Act related to the same alleged dismissal. The first application was made against a company called AH Fabrications (NSW) Pty Ltd (matter number C2012/2556). That application was allocated to Deputy President Smith.

[11] The Applicant attached several pieces of correspondence sent and received in relation to her first application to her second application. I will refer to some of that correspondence now.

[12] The Deputy President listed the matter for conference on 21 March 2012. 1 According to the Applicant, the Respondent raised a jurisdictional issue, that the application was made out of time. The matter was then listed for hearing before the Deputy President on Friday 13 April 20122, presumably for determination of the extension of time issue, but the hearing was adjourned by the Deputy President after a request from the Respondent. The matter was listed a second time for hearing on Monday 7 May 2012.3 Before the third hearing the Respondent advised the Deputy President that the company AH Fabrications (NSW) Pty Ltd had gone into voluntary administration. The Deputy President cancelled the listing4 and closed the file.

[13] On 18 March 2013, the Applicant contacted Deputy President Smith’s chambers by email advising that;

“The company has now re-established itself, as ENI Industries trading as AH Fabrications with no change of staff, equipment, customers or revenue and I have been advised by a legal representative that I should revisit my unfair dismissal case.”

[14] The Applicant’s email concludes by stating: “I await your response or instruction as to how to revisit my application”. Deputy President Smith’s associate replied to the Applicant by email on 20 March 2013 and stated as follows;

“The Deputy President has read your email and advises that the case you have referred to has been closed.

He understands the issue you raise but it would be inappropriate for him to provide any advice.”

[15] That same day, the Applicant sent a further email to Deputy President Smiths chambers in the following terms;

“What is my avenues for reopening the case?  I do not know the system and need some guidance?  Do I start the process again?  I am not asking advice, but to find out what my options are?  Surely you could provide this seeing my case was delayed twice by Mr Otten, then cancelled because of the administration.

Please inform me of my options if available.”

[16] On 22 March 2013, the Applicant was sent an email from “Michael” of the Fair Work Commission, which stated that “Deputy President Smith has asked me to respond on behalf of his Chambers”. The email states, “In this case you will need to make a second application in relation to your dismissal”. It is suggested by “Michael” that the second application include a covering letter requesting that the original application be relisted and setting out the history of the matter;

“...particularly with what happened with the company going into, and now out of, voluntary administration.

Requesting the relisting of the original matter will enable the Commission to list both the original matter and the new matter together, providing a clear background to what has happened to this point and the actions that you have taken to dispute your dismissal.”

[17] Subsequently, the Applicant lodged a further Form F8 against the second company, ENI Industries Pty Ltd T/A AH Fabrications. That application was lodged on 26 March 2013. The Respondent’s F8A had two responses: “I strongly object to this application and deny the Applicants allegations” and “The respondent has never employed the applicant”.

[18] As detailed above, the second application (this application) was allocated to me for conference. In the circumstances, I determined to list the second application for conference. I did not relist the first application in combination with the second application as there was no basis to do so. The suggestion made to the Applicant that this could be done was incorrect. The file for the first application was closed. The first application has not at any stage been allocated to me.

[19] The task before me is to determine if, in the circumstances an extension of time should be granted for the making of the second application.

The law to be applied

[20] Subsection 336(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. In considering what are exceptional circumstances I have adopted the approach of Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation 5;

“In summary, the expression “exceptional circumstances” 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.” 6

Consideration of the factors in section 366(2)

Subsection 366(2)(a) - the reason for the delay;

[21] The reason for the delay needs to be considered against the background and history to this matter set out above. The Applicant has made an application against the second company on the basis that it is essentially the first company that has “come out of” voluntary administration. This claim appears to be based on an email 7 that came into her possession. That email appears to be a generic email sent to suppliers. The email is signed off by Doreen Tabone of AH Fabrications (NSW) Pty. Ltd. It states as follows;

“Dear Supplier, Please be advised that AH Fabrications are no longer under voluntary administration and have now undergone a company restructure. We would like to inform you that our new company details are as follows: (ENI Industries (trading as AH Fabrications) (ABN 39 156 210 865)”

[22] The Applicant also states that;

“In affect although the company is now “ENI trading as AH Fabrications” operating under the same name, same staff, same industry, same customers producing the same results, the respondent has escaped responsibility for the General Protections dispute because the entity, although exactly the same operation, now operates under a different ABN, which has prejudiced my claim as an employee creditor in the administration”. 8

[23] The administrator of AH Fabrications (NSW) Pty Ltd has made a payment to the Applicant as a result of a creditor claim she has made against that company. I note that payment was made in reference to claims for wages, superannuation; accrued leave and retrenchment benefit and loans. 9

[24] Other aspects of the Applicant’s submission relevant to the reason for the delay include a request to recognise the circumstances she has had to endure for nearly eighteen months; that she resides with her mother in an aged-care facility; that she is trying to gain suitable employment and is dependent on her family for food and shelter. 10

[25] The Respondent states that the Applicant has never been employed by the Respondent in any capacity in the past or present. Accordingly, there are no grounds to make the application. Further the Respondent submits:

• The Applicant was formerly employed by AH Fabrications (NSW) Pty. Ltd. which was subsequently placed under voluntary administration on or about April 2012.



• The claim by the Applicant for alleged unpaid entitlements is being addressed by the administrators of AH Fabrications (NSW) Pty Ltd.



• The claim by the Applicant for unpaid entitlements has also been made in the Family Court as part of a property settlement.



• The Applicant in filing this application is making an abuse of process.



• The Applicant’s submissions do not deal with any reasonable explanation for the delay save for disclosing her attempts to pursue her claim in alternative jurisdictions during the last 14 months.

[26] Having considered the background to this matter as well as the submissions of the Applicant and the Respondent, I am not satisfied that there are exceptional circumstances that constitute an acceptable explanation for the delay. The Applicant has pursued her claim for entitlements against the administrator of her former employer, AH Fabrications (NSW) Pty Ltd. The administrator has clearly accepted and paid part of the Applicants claim on the basis that she was a former employee. The fact that a second company has come into operation, with all the characteristics of the first company, does not mean the company had an employment relationship with the Applicant. The email in attachment H of the Applicants Form F8 from Ms. Tabone suggesting that the company is no longer in voluntary administration is at odds with the facts. While the Applicant is no doubt frustrated with the inability to prosecute her original claim against AH Fabrications (NSW) Pty Ltd, she herself acknowledges that the Respondent has escaped responsibility for the general protections dispute. 11

Subsection 366(b) - any action taken by the person to dispute the dismissal;

[27] There is a great deal of evidence that the Applicant has taken action to dispute her dismissal. The original section 365 application is clear evidence of this. This is a factor weighing in favour of the granting of the application.

Subsection 366(c) - prejudice to the employer (including prejudice caused by the delay);

[28] The Applicant has made no submission relevant to this consideration. The Respondent claims it will be prejudiced by the requirement to defend the claim.

[29] The Respondent claims the application is an abuse of process as the Applicant was never employed by the Respondent. Given the significant length of delay it is reasonable to presume that there is prejudice for the respondent in allowing the extension of time. 12

Subsection 366(d) - merits of the application;

[30] The starting point for considering the merits of this application is a consideration as to whether the Applicant was an employee of the Respondent to this application. The facts are that the Applicant made a first application against AH Fabrications (NSW) Pty Ltd. In making that application, the Applicant was clearly of the view that AH Fabrications (NSW) Pty Ltd was her employer.

[31] According to a letter sent to me by Mr. Robert Whitton of William Buck Chartered Accounts and Advisors on 9 May 2013, AH Fabrications (NSW) Pty Ltd (ACN 110 985 923) was wound up in voluntary administration and subject to a deed of company arrangement. The letter advises that ENI Industries Pty. Ltd. (ACN 156 210 865), under the terms of a Deed of Company Arrangement, secured the company’s plant, equipment, work in progress and stock. In return, ENI Industries Pty Ltd is required to make contributions to the Deed of Company Arrangement fund and those funds are to be distributed to the creditors of the company. Due to an administrative error from my chambers, the Applicant was not provided with a copy of that letter. It is attached to this decision at Annexure A. The contents of the letter however accord with the Applicant’s submissions about the circumstances surrounding AH Fabrications (NSW) Pty Ltd going into voluntary administration and the views of the Applicant that the Respondent company is “acting precisely the same” 13, “operating under the same name, same staff, same industry, same customers”.14 The Applicant attached several pieces of correspondence which she has received from William Buck Chartered Accountants and Associates in relation to her creditors claims. I have considered whether the letter should not be considered by me, as it was not provided to the Applicant, however consider that the letter does not provide any information that varies from the view of the circumstances as presented by the applicant.

[32] The Applicant in her submissions in reply, stated that she was employed by the Respondent at the time the ENI group of companies was formed (on 30 June 2009). This reference is confusing, however I believe based on other material that the Applicant was referring to AH Fabrications (NSW) Pty Ltd as “the Respondent”. The Applicant provided evidence by way of a statement from Mr. Arulampalm, a former advisor to the business, that she had come up with the name ENI, a shortened version of the name “Ebony and Ivory”. 15 However, there is no evidence to support the claim that she was employed by ENI Industries. There is only evidence to support a finding that she was employed by AH Fabrications (NSW) Pty Ltd, now in voluntary administration.

[33] A second key factor relevant to the merits of the application is the Respondent’s claim that Ms. Syme abandoned her employment with AH Fabrications (NSW) Pty Ltd. The Applicant claims she was unlawfully terminated on 6 December 2011. If there is not a dismissal within the meaning of the Act, there is no jurisdiction to determine the matter. It is not possible on the material before me to determine whether or not there was a dismissal. This is a neutral consideration

[34] A third factor relevant to the merits is the basis of the claim that the general protections provisions where, in fact breached. The applicants Form F8 application simply recites sections from the legislation and there is no detail as to the specific contraventions alleged. However, attachment A and attachment P to the Applicant’s Form F8 clearly go to the merits. The summary of adverse action said to have been taken is set out in paragraph 38 of attachment A and is said to include:

“38. As a result of the Applicant exercising her workplace rights, the Applicant was subjected to adverse action by the Respondents. This adverse action includes:

a) The Managing Director told the Applicant to not return to company premises, and threatened her with police involvement should she go to work.

b) The Applicant’s access to emails and the tools to perform her role were removed.

c) The Applicant was abused, bullied and later refused contact by the Respondents.

d) The Respondents have made misrepresentations to other staff, the Mortgage Broker and AI Group about the Applicant, which has significantly disparaged the Applicant and damaged her reputation within the workplace.

e) The Applicant was not allowed to attend work by her employer for the entire month of November 2011. She was not paid salary throughout the month of November 2011, despite providing a valid medical certificate.

f) AH Fabrications unlawfully terminated the Applicant’s employment on 6 December 2001.

g) AH Fabrications has not paid the Applicant her correct termination notice period. The company has instigated the seizure of company property in the Applicant’s possession.

h) AH Fabrications has not repaid the Applicant interest upon the unauthorised deductions made from her pay.

i) AH Fabrications has not repaid the Applicant’s loan of $184,005.40 (AHF continue to make payment $2955.73 per month), nor her loan of $20,000.00”

[35] The response from the Respondent to the allegations is best summarised in attachment Z to the Applicant’s submissions, a letter from AI Group Legal dated 6 December 2011 to Danny King of Danny King Legal who appears to have represented the Applicant for a time. In the letter, it is stated;

“The Company is of the view that your client’s conduct in destroying company property immediately before departure and electing to remain away from work for over a month has demonstrated an intention no longer to be employed by the Company. The Company considers itself discharged from further obligation under the employment contract. Any outstanding entitlements will be paid forthwith.

Needless to say the lengthy but factually inadequate assertions of wrongdoing on the part of the Company and its officers is denied. The Company has not breached any of the identified provisions of the Fair Work Act. It denies that the representations were made to your client or that the legal conclusions you draw are available to your client. You are no doubt aware that there are negotiations on foot in relation to the shareholder/company loan issue.”

[36] There are clearly a number of disputed facts. It is not appropriate to embark on a detailed consideration of the substantive case when considering the merits for an extension of time for the lodgement of an application. 16 In the circumstances, this factor is neutral in terms of my consideration.

[37] While the merits of the application in so far as whether or not there was a dismissal, and whether there was a breach of the general protections provisions are neutral in terms of my consideration, it is clear that on the Applicant’s own evidence she was employed by AH Fabrications (NSW) Pty Ltd, the company in voluntary administration. There is no evidence to support the claim that the Applicant was employed by the Respondent company named in this application. Accordingly, the claim is most likely to fail for want of jurisdiction and on that basis alone, I find it has little or no merit.

Subsection 366(e) - fairness as between the person and other persons in a like position.

[38] The Applicant has not raised and I am not aware of any matters in which an extension of time has been granted to persons in a like position to the Applicant.

Conclusion

[39] It is regrettable that the Applicant was advised, when her original application against AH Fabrications (NSW) Pty Ltd had been closed, to file a further application and that the new application could be joined with the earlier closed application against the actual employer. However, the suggestion that was made appears to have been based on an acceptance by the Fair Work Commissions officer of the Applicants’ mistaken view that AH Fabrications (NSW) Pty Ltd had “re-established itself.”

[40] Having considered the background to this matter as well as the submissions of the Applicant and the Respondent, I am not satisfied that there are exceptional circumstances that constitute an acceptable explanation for the delay. There is ample evidence that the Applicant has contested the dismissal. I am satisfied that there is significant prejudice to the Respondent should the extension be granted. However, there is little merit to the claim as there is no evidence that the Applicant was employed by the named Respondent.

[41] The circumstances surrounding this matter would undoubtedly be frustrating for the Applicant. The Applicant’s misconception that her previous employer, having been placed in voluntary administration, appeared to be re-established is understandable given the terms of the Deed of Company arrangement. However, having taken into account the factors in section 366 of the Act, I am not satisfied that there are exceptional circumstances to permit an extension of time. The application is dismissed.

COMMISSIONER

Annexure A:

 1   Form F8 - Application for FWA to deal with a general protections dispute, filed 26 March 2013, Attachment B1

 2   Ibid, Attachment B2

 3   Ibid, Attachment B3

 4   Ibid, Attachment B4

 5   [2007] AIRC 848

 6   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848, [10]

 7   Form F8 - Application for FWA to deal with a general protections dispute, filed 26 March 2013, Attachment H

 8   Submission of the Applicant, filed 29 May 2013, [27]

 9   Submission of the Applicant, filed 29 May 2013, Attachments B, B1 and B2.

 10   Submission of the Applicant, filed 29 May 2013, [29]

 11   Ibid, [27]

 12   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J).

 13   Submission of the Applicant, filed 29 May 2013, [3]

 14   Ibid, [27].

 15   See Statement of J Arulampalam, attachment to Applicant’s Response to the Respondent’s Submission, filed 25 June 2013

 16   Kyvelos v Champion Socks Pty Limited, 10 November 2000, Giudice J, Acton SDP, Gay C, Print T2421, [14]

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