Mr Ben Marshall v Games Lab Pty Limited

[2015] FWC 6302

[2015] FWC 6302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Ben Marshall
v
Games Lab Pty Limited
(C2015/2880)

COMMISSIONER RIORDAN SYDNEY, 30 SEPTEMBER 2015

Application to deal with contraventions involving dismissal.

[1] Mr Ben Marshall filed a General Protections application in accordance with section 365 of the Fair Work Act, 2009 (the Act) against Games Lab Pty Ltd trading as Dynamite Services Pty Ltd.

[2] On a without prejudice basis, Games Lab Pty Ltd (Games Lab) participated in a Conference on 17 June 2015 in an endeavour to resolve the matter. Unfortunately no settlement could be reached at the Conference. Before I signed the Certificate in accordance with section 368(3) of the Act, Games Lab pushed their jurisdictional objections that:

(a) Mr Marshall was not and never was an employee, therefore there was no dismissal; and

(b) Mr Marshall, if he was an employee, lodged his section 365 application outside of the 21 day time limit specified in section 366(1)(a) of the Act.

[3] The jurisdictional objection was heard on 28 July 2015. Leave was granted in accordance with section 596(2) for Ms Perigo of Counsel to represent Mr Marshall and for Mr Gotting of Counsel to represent Games Lab.

[4] Mr Marshall sought to amend the application to properly reflect the legal name of the Respondent, ie Dynamite Services Pty Ltd (Dynamite). Dynamite did not oppose this amendment. I formally accept the amended application.

[5] Witness statements were sworn by:

• Mr Ben Marshall 1 – the Applicant;

Mr Benjamin Ellis 2 – Managing Director, Dynamite; &

Mr Samuel Appleby 3 – an employee of Dynamite

[6] The relevant provisions of the Act are:

s365 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.
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.

368 Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

Jurisdictional Issues – Employment Relationship

[7] Ms Perigo submitted that the Fair Work Commission (FWC) cannot and should not deal with the issue of the employment status of Mr Marshall. Ms Perigo argued that such a determination was a matter for the Courts.

[8] Further, Ms Perigo argued that Mr Marshall, who claims he was dismissed on 30 April 2015, was not “out of time” on the basis that he submitted his application on the twenty first day after his termination (21 May 2015), albeit incorrectly.

[9] Dynamite argued that Mr Marshall was not an employee but an independent contractor who was providing information technology services to Dynamite through his Company Gould Marshall Pty Ltd. The Respondent tabled numerous tax invoices from, Gould Marshall which identified the regular monthly payments for Mr Marshall’s services, including GST.

[10] Further, Dynamite submitted that, whatever the employment/contractual relationship between the parties, it came to a conclusion on 24 March 2015, some 58 days before 21 May 2015.

[11] Dynamite also argued that Mr Marshall actually filed his application on 22 May 2015, so he was “out of time” even if he was right in claiming that he was terminated on 30 April 2015.

[12] Both parties referred me to the decision of a Full Bench of the FWC in Hewitt v Topero Nominees Pty Ltd 4. The Full Bench said:

“[37] Given the similarity between the scheme in ss.773-778 and those in ss.365-370, the analysis in Hetherington-Gregory strongly suggests that s.365(1) is not to be interpreted as imposing jurisdictional prerequisites such that the Commission might be required to hold a separate hearing, receive contested evidence and make a determination going to the merits of the application and potentially affecting the applicant’s right to have his or her rights under Part 3-1 determined by a relevant court.

[38] As we have noted, s.366 provides an exception to the general proposition that the Subdivision does not confer any determinative power upon the Commission. But the express power in s.366(2), to extend the time within which an application must be made, serves to reinforce the point that where the legislature intended to confer a determinative power it did so expressly. Absent an express provision there is no legislative intent to confer a determinative power. This point is supported by an analysis of the provisions of the Act which deal with unfair dismissal applications. We deal with those provisions shortly.

[49] Given the anomalous results which would flow from the adoption of the interpretation advanced by the respondent, an alternative interpretation of the relevant statutory provisions which avoids the Commission effectively determining legal rights under Part 3-1 as a consequence of its statutory functions under ss.368 and 369 is to be preferred, if reasonably available. In our view, such an alternative interpretation is available.

[13] This issue was succinctly summarised by another Full Bench in Abu-Izneid v Charles Darwin University 5, where the Full Bench said:

“[11] These provisions were considered by a Full Bench in the recent case of Hewitt v Topero Nominees. The Full Bench analysed the role of the Commission in holding a conference in relation to a s.365 application and held that apart from determining applications for an extension of time for filing applications, the Act does not impose any jurisdictional preconditions on the making of a s.365 application of such a nature that might require the Commission to engage in a process of determination involving the making of findings of fact based on the receipt of contested evidence. The Full Bench concluded that the Commission does not need to be satisfied that the applicant has been dismissed from their employment before holding a s.368 conference and that it is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.”

[14] On the basis that there is no express provision in the Act to allow the conclusion to determine any issue in relation to a section 365 application except for issues in relation to an extension of time, I find that the FWC does not have the jurisdiction to determine the employment relationship between Mr Marshall and Dynamic Services.

[15] I noted, however, that the FWC may express an opinion on the likely success of the application to the Court (s368(1)).

Out of Time

[16] Turning to the issue of whether the application was made “out of time”, the parties have disputed the actual termination date.

[17] On 9 February 2015, Dynamite wrote to Gould Marshall giving notice to terminate their services.

“9 February, 2015

Gould Marshall Pty Ltd T/as
Info-Tech Outsourcing
63 Denison St
Camperdown NSW
ABN 57 105 901835
cjo ben Marshall

Notice of termination of ongoing Information Technology services and process for the hand over of Information Technology services

Dear Ben,

This letter supersedes by mutual agreement between the parties our letter issued on 30 January, 2015 which is of no force or effect.

This letter is to formally confirm our agreement that the commercial relationship between Gould Marshall Pty Ltd trading as Info-Tech Outsourcing ("you" or "Info-Tech") and ourselves (Dynamite Services Pty Ltd and its related entities, Slots Central Pty Limited and Four Creative Minds Partnership and its subsidiary and related entities) ("Dynamite") for the provision of ongoing monthly Information Technology ("IT") services will terminate no later than 30 April, 2015 ("Termination Date").

We trust that this termination process can be handled in as efficient and professional manner as possible. Info-Tech and Dynamite acknowledge and agree that this document forms a binding and enforceable agreement between the parties once signed by all parties.

Termination Date:

1. The Termination Date listed above, 30 April, 2015, will remain in force unless altered as follows:

1.1. An earlier Termination Date is mutually agreed in writing between Info-Tech and Dynamite, or
1.2. Info-Tech lawfully ends the provision of its services by providing at least 30 days written notice to Dynamite of such intent, or
1.3. The handover of IT services is completed to Dynamite's absolute satisfaction prior to the Termination Date ("Handover Complete"). After Hand over Complete, no IT services will be provided by Info-Tech.

Provision of IT Services through to Termination Date:

2. The regular provision of Info-Tech's normal IT services to Dynamite will continue through February, March and April, 2015, unless an earlier Termination Date is reached in accordance with Item 1, above.

3. Payments to Info-Tech and Incentive:
Being mindful of the need for our regular IT support during the IT-handover and due to the long nature of the provision of these services, we are prepared to offer an incentive to assist in the transition, as follows:

3.1. Payment for February, 2015, will take place as normal upon provision of the February, 2015 invoice from Info-Tech, being AUD$8,000 + GST, in return for the normal provision of IT services from Info-Tech but subject to and conditional upon you providing the information required in Clause 4.2.

3.2. Payment for the provision of ancillary monthly services for February, 2015, will take place as normal upon provision of the February, 2015 invoice from Info-Tech. For example, the provision of Bucket Server, DNS Hosting and Email filtering services but subject to and conditional upon you providing the information required in Clause 4.2.

Incentive

3.3. If Handover Complete is achieved no later than C.O.B. 28 February, 2015, an incentive payment of AUD$15,000 + GSTwill be made to Info-Tech, along with the early payment of the monthly amounts for March and April, 2015, being in total AUD$16,000 + GST plus AUD$4,000 to compensate for the cessation of ancillary services (total payment thus being AUD$35,000 +GST) but subject to and conditional upon you providing the information required in Clause 4.2.

3.4. If Handover Complete is not achieved by C.O.B. 28 February, 2015, but the completion of the handover is deemed by Dynamite, in its absolute discretion, to be caused by elements beyond the reasonable control of Info-Tech, then an incentive payment of AUD$15,000 + GST will be made to Info-Tech upon Handover Complete, along with the early payment of the monthly amounts (if not yet paid) for March and April, 2015, plus AUD$4,000 to compensate for the cessation of ancillary services but subject to and conditional upon you providing the information required in Clause 4.2.

3.5. If Handover Complete is not achieved by C.O.B. 28 February, 2015, and the completion of the handover is deemed by Dynamite, in its absolute discretion, to be due to elements within the reasonable control of Info-Tech, then an incentive payment of AUD$5,000 + GST will be made to Info-Tech upon Handover Complete if completed by C.O.B. 31 March, 2015, along with the

early payment of the monthly amounts (if not yet paid) for March and April, 2015, plus AUD$2,000 to compensate for the cessation of ancillary services but subject to and conditional upon you providing the information required in Clause 4.2.

4. Process for Handover:
Dynamite is establishing a handover process to cover the provision of IT services through to the Termination Date.

IT services will be assumed by AUP I.T Pty Ltd
During the handover, the transition process will function as follows:

4.1. Info-Tech will maintain existing IT support to ensure Dynamite's normal company operations are maintained from an IT perspective, until such time as services are terminated in accordance with Item 1, above.
4.2. All network, administration, server and other passwords pertinent to the hardware, software and services of Dynamite Services and its related entities will be immediately provided to Jason Stokes, Director at Dynamite Services Pty Limited forthwith upon signing of this agreement by you and Dynamite.
4.3. Provision of services to allow AUP I.T Pty Ltd to engage in a discovery process over their 5 day period.
4.4. Provision transfer of all IT solutions as required by AUP I.T Pty Ltd including but not limited to,Windows servers, VM hosts and cluster, Virtualised environment, Linus/Centos servers, SAN/LUN's, Backup environments, Hosted AWS cloud servers and SQL where access occurs, Exchange servers, FTP servers, TFS servers, proxy servers, UTM servers, Bluecoat servers, Antivirus, Fiber and ADSL connections, VLAN and switching and so on.

5. Failure to Provide IT Services without lawful termination:
This agreement requires, in all of the scenarios outlined above, a minimum service provision by InfoTech through to the Termination Date.
Info-Tech must cooperate in a professional fashion throughout this process including with Dynamite and AUP I.T Pty Ltd. Dynamite reserves its legal rights for remedy in the event of unlawful termination of service provision without notice.
If Info-Tech ceases to provide IT services to Dynamite without providing 30 days written notice, Dynamite shall make no further payments to Info-Tech immediately upon such cessation and reserves its rights to further action.
7. Confidentiality

…As your engagement with us is now ending, you agree that you will return to us by Handover Complete date any confidential information, materials or property related to Dynamite that you have in your possession.

We also ask that you sign and return a copy of this letter confirming that you acknowledge and agree to the terms appearing in this letter.”

[18] This letter was signed by Mr Marshall on 10 February 2015.

[19] Prior to 9 February 2015, there was a litany of emails exchanged between Mr Marshall and Mr Ellis in relation to the notice period for the termination of the contract, the quantum to be paid as a result of the termination and the work to be performed by Mr Marshall to hand over to the new IT firm.

“On 5 February 2015, at 8.40am, Ben Marshall wrote:

Hi Ben,

At this stage I have not fully reviewed you documents, in part due to the attached invoices and work logs.

We have had 2 meetings “December & January” that this has been tables and dismissed by your company. I have been very patient giving you time for your OS trips Christmas etc, and not pushing the matter, however in view of recent events this matter now must be resolved before we can move forward.

You, may also query the higher than normal costs incurred, that fall’s entirely on Games Lab’s failure to meet basic obligation’s & requirements to complete task’s in a timely and efficient manner. See the attached emails for some insight.

As soon as we have resolved, I shall assist you in any and every way possible to migrate ALL services away in a timely manner. I would of course have to review and amend your scope in which to achieve this however in “spirit” you will have 100%+ support, and even advise if required.

Ben as I’m dealing with you I would suggest afternoon tea in St Leonard’s to discuss with the aim of coming to an agreement, in which we can speedily move forward from this point

You’ll have to call me on my cell

Ben”

On 5 February 2015, at 8.48am, Ben Ellis wrote:

“Ben, your contract was never one where you were paid more than the agreed monthly amount, so there is no way that the invoice you have issued for the office move is going to be paid.

It is more netted out by the work logs over the preceding 12 months that indicate you were regularly working minimal hours every month, but still getting paid the agreed monthly amount.

If you do not accept the offer we have put forward then I will move on the alternative, which will see you legally required to surrender all passwords and access, and your services will be terminated on a notice period that is likely to be less than the 90 days we have offered….”

On 5 February 2015, at 12.26pm, Ben Marshall wrote:

“… Now I’m almost inclined to review and sign your document (I’ll have to ensure “Gould Marshall” data) is handled appropriately, and a few other requirements. With the aim of finalising our relationship in a proper and honourable way, however you have to look at the big picture closely read through the worksheets and make a move, you are close…”

On 5 February 2015, at 12.43pm, Ben Ellis wrote:

“Thanks Ben,

I agree that, as with previous moves, there’s a lot of work to be done around that time. But equally you need to accept that there have been many months throughout our commercial dealings where you haven’t had to spend many hours on us.

That’s the pros and cons of the monthly payment, good and bad.

… We could have done a straight 30 days’ notice and paid $8,000, but we’re offering you $30,000 over that scenario. How is that not fair?

It’s a pretty cruise gig to simply handover the stuff to the new guys and pocket the Feb payment + $30,000.”

On 5 February 2015, at 12.52pm, Ben Marshall wrote:

“ben…we all don’t have time for this you want to move forward I want to move forward… so I’ll make it easy.

Throw another 5-10k on & SAY SORRY!!!!

Then we can all have happy lives!”

On 5 February 2015, at 12.59pm, Ben Ellis wrote:

“Sorry for what Ben, what mythical grievance should I be apologizing for?

As for negotiation, I absolutely refuse to negotiate at the point of a gun.

You are in a legal minefield at the moment, so if you want to negotiate, hand over the passwords and then I’m open to negotiation.

Regards

Ben”

On 5 February 2015, at 1.15pm, Ben Marshall wrote:

“Ben

Technically you have the passwords (or the MASTER=dynamite/administrator)

I think that it all warrants a small apology!”

On 5 February 2015, at 1.26pm, Ben Ellis wrote:

“Ben, I’ve been told we do NOT have all the master passwords, so please discuss this was Jas.

So, getting down to resolution:

After consulting with Jas we are prepared to up the “incentive” handover payment to $15,000, if work is completed by the end of this month (which it should be, this should not be a complicated or prolonged event)

This would raise the entire payment, including February, to $43,000 + GST

As part of this process we will need to sort the password situation (confer with Jas) and revise the proposal (if accepted).”

On 5 February 2015, at 1.41pm, Ben Marshall wrote:

“… I gave Jase every warning that time was drawing to a close.

All you had to do was ask. You don’t sit me down & set my rates & or tasks.

That’s an other olive branch.”

On 5 February 2015, at 1.42pm, Ben Ellis wrote:

“Ben, you haven’t responded to whether you are accepting the revised proposal

If you are then we can move forward.

After consulting with Jas we are prepared to up the “incentive” handover payment to $15,000, if work is completed by the end of this month (which it should be, this should not be a complicated or prolonged event)

This would raise the entire payment, including February, to $43,000 + GST

As part of this process we will need to sort the password situation (confer with Jas) and revise the proposal (if accepted).

This proposal will also stipulate that this is a full and final accounting, and require no ongoing defamation of ether yourself or ourselves, or interference in either party’s business.”

(my emphasis)

On 5 February 2015, at 1.48pm, Ben Marshall wrote:

“thank you Ben…

Offer subject to anything wrong is accepted.. (don’t worry I’m not going to pull it apart)

What do you need now?”

(my emphasis)

[20] I have concluded that the document signed on 10 February 2015, was the negotiated position of the parties in relation to the termination of the relationship.

[21] The important clause of this document for these proceedings relates to the termination date of the relationship, which states:

“Termination Date:

1. The Termination Date listed above, 30 April, 2015, will remain in force unless altered as follows:

1.1. An earlier Termination Date is mutually agreed in writing between Info-Tech and Dynamite, or

1.2. Info-Tech lawfully ends the provision of its services by providing at least 30 days written notice to Dynamite of such intent, or

1.3. The handover of IT services is completed to Dynamite's absolute

satisfaction prior to the

Termination Date ("Handover Complete"). After Hand over Complete, no IT services will be provided by Info-Tech.”

[22] Dynamite utilised the provisions of clause 1.3 by issuing a final letter on 23 March 2015, in the following terms:

“23 March, 2015

Notification of Handover Complete and Process for Final Payment

Dear Ben,

This letter is to formally confirm that Handover Complete has been achieved, as required by Agreement of 9 February, 2015 ("9 February Agreement") between Gould Marshall Pty Ltd trading as lnfo-Tech Outsourcing ("you"or "Info-Tech") and ourselves (Dynamite Services Pty Ltd and its related entities, Slots Central Pty Limited and Four Creative Minds Partnership and its subsidiary and related entities) ("Dynamite").

Handover Complete is accepted by Dynamite as being complete by C.O.B. 28 February, 2015, and the commercial relationship between you and Dynamite is now terminated without any further obligation or liability of Dynamite in accordance with the 9 February Agreement.

Payments already made as per the 9 February Agreement are set out as follows:

• Payment for February, 2015 for IT services:

• Payment for ancillary monthly services for February, 2015:

As per the 9 February Agreement, the following payments are due, as a Full and Final payment, after acceptance of the terms appearing in this letter:

•Incentive payment: AUD$15,000 + GST

• Payment for March, 2015: AUD$8,000 + GST

• Early payment for April, 2015: AUD$8,000 + GST

• Payment for ancillary monthly services for March, 2015: AUD$2,000 + GST

• Early payment for ancillary monthly services for April, 2015: AUD$2,000 + GST

As per the 9 February Agreement, the full and final total payment is therefore AUD$35,000 + GST

1. Full and Final Payment

1.1 By signing and returning this letter, you and Dynamite agree that the amount of AUD$35,000 + GST set out above is the Full and Final Payment due from Dynamite to Info-Tech under the 9 February Agreement or otherwise in any manner directly or indirectly in respect of any service or work Info-Tech Outsourcing and I or Ben Marshall may have performed for Dynamite.

1.2 You expressly agree and warrant that no other invoices or costs are payable, other than this Full and Final Payment amount.

2. General Terms

2.1 This agreement may be pleaded as a full and complete defence by Dynamite (and its respective directors, employees, servants or agents) to any actions, suits, or proceedings commenced, continued or taken by you in any jurisdiction or country of the world in connection with any of the matters referred to in this agreement and in respect of any service or work Info-Tech Outsourcing and I or Ben Marshall's services to Dynamite including your contractor agreement with Dynamite.

2.2 The Parties agree that no Party will publicly disparage any other Party, or bring the other into disrepute, either orally, in writing, or by any other means of communication.

2.3 You agree that you will not in any way comment upon, post in relation to or refer in any way (directly or indirectly including through an agent, blogger, journalist or other third party) to Dynamite or your dealings with Dynamite or the services you provided Dynamite (in any manner directly or indirectly) in any media channel including but not limited to any traditional, digital, electronic or social media or channel (whether existing now or devised in the future).

3. Confidentiality

3.1 The circumstances surrounding the subject matter of this agreement and the terms and subject matter of this agreement are confidential. The Parties may not otherwise disclose the circumstances surrounding, the terms or subject matter of this agreement to any person other than their shareholders, or legal and financial advisors (or to comply with any applicable law, or any requirement of any regulatory body) and provided such shareholders, legal or financial advisers have expressly agreed to preserve the confidential terms and subject matter of this agreement and not disclose the circumstances, terms and subject matter of this agreement to any person, otherwise than with the express written consent of the other Party.

We require that you sign and return a copy of this letter confirming that you acknowledge and agree to the terms appearing in this letter, after which the Full and Final Payment will be duly processed.

With thanks,

Ben Ellis

Managing Director

Dynamite Services Pty Limited”

[23] This letter was attached to an email from Mr Stokes on 24 March 2015:

“From: Jason Stokes [mailto:[email protected]]
Sent: Tuesday, March 24, 2015 6:39 PM
To: Ben Marshall
Cc: ben ellis; shelley blake
Subject: Handover Completion

Hi Ben,
We have been advised that IT handover has been completed. Thanks for all your efforts getting it done during February.

Attached is the Handover completion document that needs to be signed and returned to Ben Ellis or I. If you have any questions please direct them to Ben Ellis.

Shell advised that it would be easier to invoice the total amount in one invoice if that works for you.
Thanks and regards,

Jason Stokes
Director
Games Lab Pty Ltd”

[24] Mr Marshall refused to sign the new letter on the basis that he had already signed the 9 February 2015 document.

“From: Ben Marshall [mailto:[email protected]]

Sent: Tuesday, 24 March 2015 6:42 PM

To: Jason Stokes

Cc: ben ellis; shelley blake

Subject: RE: Handover Completion

Jase

You know my thoughts on that doc.

We already have signed one ... and I'm not going to waste my time doing another

NOT GOING TO HAPPEN SO DON'T EVEN BOTHER ASKING AGAIN!

B”

[25] Mr Marshall has provided no further IT services to Dynamite since this date.

[26] I note that the correspondence of 23 March 2015 states quite categorically that Dynamite accepted that the handover had been completed on 28 February 2015 and that Dynamite was waiting on an invoice from Gould Marshall for the full amount (ie $35,000 + GST).

[27] Mr Marshall has continued to press for the payment of invoices which have been tendered for work that was performed, allegedly, outside of the contract of engagement.

[28] Dynamite has not yet been invoiced, nor has it paid the agreed termination payment of $35,000 + GST.

[29] On 15 May 2015, Mr Marshall sent an email to Dynamite to advise them of the rescission of the 9 February 2015 Agreement because it was signed under duress. Mr Marshall also advised that he was seeking the payment for the outstanding invoices.

[30] I note that Mr Marshall’s attempt to rescind the 9 February 2015 Agreement occurred after the notional expiry of the employment relationship, that being 30 April 2015, and after the notification of the completed handover of 24 March 2015, after which no IT Services have been provided by Mr Marshall to Dynamite.
Conclusion

[31] I do not accept the submission from Dynamite that the FWC can determine the employment relationship in any General Protections application. That issue is a matter for the Court.

[32] I cannot find any evidence that Mr Marshall was forced to sign the 9 February 2015 Agreement or that he was under any undue influence or duress. Obviously, there would have been some stress involved in the situation. The termination of a contractual relationship ordinarily produces a stressful situation.

[33] I find that the 9 February 2015 Agreement was entered into freely by both sides and was the result of detailed negotiations, albeit, by email. I am particularly influenced by Mr Marshall’s email of 5 February 2015 at 1:48pm where he accepted the offer.

[34] I am also satisfied that the terms of the 9 February 2015 Agreement has been complied with by Mr Marshall. I do not accept that there was a need for the document of 23 March 2015, or that Dynamite had the capacity to start introducing new obligations upon Mr Marshall at that point in time. The termination contract had been agreed. The email from Mr Stokes on 24 March 2015, simply had to state that the relationship had concluded.

[35] I find that the relationship terminated on 24 March 2015. Mr Marshall should take up the offer of Mr Stokes and send Dynamite an invoice for $35,000 plus GST.

[36] Having found that the relationship terminated on 24 March 2015, Mr Marshall’s General Protections application of 21 May 2015 is out of time. I can find no extenuating circumstances to invoke an extension of time. I also have some doubt about the merits of the application based on my view that Mr Marshall appears to have been an employee of Gould Marshall, not Dynamite Services.

[37] The jurisdictional objection of Dynamite is upheld. The application of Mr Marshall is dismissed.

[38] I so Order.

COMMISSIONER

 1   Exhibit M1

 2   Exhibit G1

 3   Exhibit G2

 4   [2013] FWCFB 6321

 5   [2014] FWCFB 1553

Printed by authority of the Commonwealth Government Printer

<Price code C, PR571787>