Meckall Gaetan Patrick Boucher v JTM Projects Australia Pty Ltd & Trent Mumford

[2024] FWC 3401

[2024] FWC 3401

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.365—General protections

Meckall Gaetan Patrick Boucher
v

JTM Projects Australia Pty Ltd & Trent Mumford

(C2024/5969)

COMMISSIONER CRAWFORD SYDNEY, 6 DECEMBER 2024

General protections dismissal dispute – application filed out of time – action taken to dispute alleged dismissal – significant merit to application – finding of exceptional circumstances – extension of time granted.

BACKGROUND

1. JTM Projects Australia Pty Ltd (JTM) operates a services business in the mining industry in Queensland. Trent Mumford is a director of JTM. Meckall Boucher performed fly-in fly-out work for JTM from around 27 March 2024 to 26 July 2024. On 21 August 2024, Mr Boucher filed an application with the Fair Work Commission (Commission) which alleges he was dismissed by JTM in contravention of the general protections in the Fair Work Act 2009 (FW Act). The application was not filed within 21 days of the dismissal taking effect on 26 July 2024 which means Mr Boucher needs to be granted an extension of time to file his application.[1] JTM opposed the granting of an extension of time to Mr Boucher. JTM also argued Mr Boucher is not eligible to make the application because he was a subcontractor, not an employee.[2]

1. I issued directions for the filing of material and listed a hearing via video on 5 December 2024. Diana Nyari represented her partner, Mr Boucher, at the hearing. Mr Mumford did not appear at the hearing and neither did any other representative of JTM. That was despite the hearing date previously being moved to suit Mr Mumford’s availability. Mr Mumford stated in an email to the Commission dated 1 November 2024 that he was available any day after 3 December 2024. At the commencement of the hearing Mr Mumford did not answer two telephone calls made by my Associate, nor did he respond to an urgent email sent from my Chambers. Mr Mumford had previously failed to attend a Mention/Directions proceeding on 16 October 2024. In all the circumstances, I decided it was appropriate to proceed with the hearing in the absence of JTM and Mr Mumford.

1. At the end of the hearing on 5 December 2024, I confirmed that I had decided to grant an extension of time to Mr Boucher to file his general protections application. The following are my reasons for that decision. 

MATERIAL FILED

Mr Boucher

1. Mr Boucher provided a witness statement dated 29 October 2024. Mr Boucher’s statement provides evidence about why his application was not filed within 21 days of his alleged dismissal taking effect. Mr Boucher refers to financial difficulties, pursuing a separate application with the Queensland Small Business Commissioner (QSBC), delays in obtaining legal advice, and not fully understanding his legal rights and options as reasons why his application was filed out of time. Mr Boucher’s statement had the following documents attached:

·   Job advertisements for roles Mr Boucher applied for after ceasing work with JTM.

·   A copy of Mr Boucher’s new casual employment contract with Achieve Group Australia Pty Ltd dated 7 August 2024.

·   A car insurance cancellation notice from Allianz to Mr Boucher dated 9 May 2024.

·   A letter from Liberty to Mr Boucher dated 31 July 2024 which provides relief in relation to Mr Boucher’s car loan repayments.

·   A copy of the dispute notice filed by Mr Boucher with the QSBC on around 29 July 2024.

·   A copy of invoices issued to JTM by Boucher EarthWorx on 21 and 28 July 2024.

·   A copy of emails and text messages exchanged between Mr Boucher and Mr Mumford associated with the breakdown of their working relationship.  

I marked Mr Boucher’s statement Exhibit A1. Mr Boucher was not required for cross-examination.

1. Mr Boucher answered some questions from me during the hearing. Mr Boucher explained that there was no written contract governing his work for JTM and that Mr Mumford had told him he had to have an Australian Business Number (ABN) prior to commencing work. Mr Boucher stated he was told by Mr Mumford he could not work for any other businesses while working for JTM. Mr Boucher stated JTM paid for his travel to the remote working site and that JTM had full control of his working hours and duties.

1. Ms Nyari made oral submissions during the hearing.

JTM & Mr Mumford

1. JTM and Mr Mumford did not file any material in opposition to Mr Boucher’s request for an extension of time. I took the content in JTM’s Form F8A into account when determining whether to grant an extension of time.

CONSIDERATION

Was the application made within such further period as the Commission allows?

1. Under s.366(2) of the FW Act, the Commission may allow a further period for a s.365 dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a)   the reason for the delay; and

(b)   any action taken by Mr Boucher 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 Mr Boucher and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

1. I set out my consideration of each matter below.

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 16 August 2024. The delay is the period commencing immediately after that time until 21 August 2024, although circumstances arising prior to that period may be relevant to the reason for the delay.[4]

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]

1. Mr Boucher does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Boucher has not provided any reason for any part of the delay.[6]

1. Mr Boucher identified the following reasons for the delay in filing his general protections application:

1. Financial hardship.

2. Pursuing a dispute with the QSBC and being advised an application to the Commission could not be made until that dispute was resolved.

3. Being unaware of his legal rights and options.

1. It is well-established that evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[7]

1. Mr Boucher commenced a new job on 7 August 2024 which was within two weeks of when he ceased working for JTM. I am not satisfied that Mr Boucher’s financial circumstances adequately explain why he was not able to meet the 21-day filing deadline.

1. I consider the dispute filed with the QSBC was a relevant action taken by Mr Boucher to dispute his alleged dismissal and have taken this action into account in my overall assessment. However, I do not consider the QSBC dispute provides an adequate explanation for the delay. It is common for an applicant to be required to make a choice between different jurisdictions in which to dispute a dismissal. 

1. It is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[8] Mr Boucher’s lack of awareness about his rights does not provide a satisfactory explanation for the delay. 

1. The lack of a satisfactory explanation for the delay weighs against a finding of exceptional circumstances and the granting of an extension of time.

What action was taken to dispute the dismissal?

1. I accept Mr Boucher took action to dispute his alleged dismissal by filing a dispute with the QSBC. That dispute also included allegations that Mr Boucher was an employee of JTM and alleged that Mr Boucher had been dismissed for making complaints about various workplace rights.

1. I consider this factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. JTM has not argued it will suffer any particular prejudice if an extension of time is granted. I find this is a neutral factor.

What are the merits of the application?

1. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[9]

1. There was no written contract concerning Mr Boucher’s work for JTM. In the absence of any other evidence, I consider Mr Boucher has a reasonably strong argument that he was an employee of JTM, and that the purported independent contracting arrangement only arose because Mr Mumford told Mr Boucher he had to get an ABN and issue invoices. Mr Boucher says he was told he could not work for any other businesses and that JTM had complete control of his working hours and duties.

1. I also consider Mr Boucher has a reasonably strong argument that he was dismissed by JTM because he exercised workplace rights when he complained about superannuation payments not being made and other issues with his work for JTM. The communications between Mr Mumford and Mr Boucher suggest Mr Boucher was told “JTM no longer needs the services of Boucher Earthworks” after a dispute had arisen about Mr Boucher’s legal entitlements. No other reason for the end of the relationship is apparent from the communications.

1. I find the merits of the application weigh in favour of a finding of exceptional circumstances and the granting of an extension of time.

Fairness as between Mr Boucher and other persons in a similar position

1. As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[10] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[11]

1. Neither party raised an argument about fairness between Mr Boucher and other persons in a similar position. I find this is a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

1. 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.[12] 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.[13]

1. Having regard to all of the matters listed at s.366(2) of the FW Act, I am satisfied that there are exceptional circumstances.

1. Although I have not found Mr Boucher has an adequate explanation for the delay, I have found he took action to dispute the alleged dismissal and that his application appears to have significant merit. I consider these factors combined constitute exceptional circumstances. 

Conclusion

1. Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

1. Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[14] I am satisfied that it is appropriate to extend the period for the application to be made to 21 August 2024.

1. The application is listed for Mention/Conference at 2:00pm on 18 December 2024 via video.

COMMISSIONER

Appearances:

Ms Nyari representing Mr Boucher.
No appearance for JTM or Mr Mumford.

Hearing details:

2024.
Sydney (by video via Microsoft Teams).
5 December.

[1] Fair Work Act 2009 (Cth) s.366.

[2] An application pursuant to s.365 of the FW Act can only be made where the person was an “employee’ due to the definition of “dismissed” in s.386 of the FW Act.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39] (‘Stogiannidis’).

[4] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).

[5] Stogiannidis [39].

[6] Ibid [40].

[7] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].

[9] Ibid [36].

[10] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].

[11] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].

[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[13] See ibid.

[14] FW Act s.577.

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