Mr Branden Deysel v EMS Elevator Group Pty. Ltd
[2025] FWC 1879
•2 JULY 2025
| [2025] FWC 1879 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mr Branden Deysel
v
EMS Elevator Group Pty. Ltd.
(C2025/4032)
| COMMISSIONER MATHESON | SYDNEY, 2 JULY 2025 |
Application to deal with contraventions involving dismissal
On 7 May 2025 Mr Branden Deysel (Applicant) filed a Form F8 application (Form F8) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009 (Cth)(Act). The respondent in the matter is EMS Elevator Group Pty. Ltd. (Respondent).
Section 366(1) of the Act provides that an application under s.365 must be made:
(a)within 21 days after the dismissal took effect; or
(b)within such further period as the Commission allows under s.366(2) of the Act.
In 2019 the Applicant was dismissed from his employment with the Respondent. The application was made on 7 May 2025. This is over five years after his dismissal. The Applicant therefore requires an extension of time if the application is to proceed.
Section 366(2) of the Act provides that the Commission may allow a further period if it 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 between the person and other persons in a like position.
Hearing and submissions
A hearing was held on 1 July 2025 to determine whether an extension of time should be allowed.
The Respondent sought to be represented by a lawyer. Section 596(2) of the Act has the effect that the Commission may only grant permission for a person to be represented by a lawyer in a matter before it if:
(a)it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b)it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c)it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The Respondent relied on the grounds in s.596(2)(a) and submitted there is a level of complexity that arises as the application has been made out time, the Respondent has raised a jurisdictional objection, and the Applicant has raised several matters that are irrelevant to the general protections regime. The Respondent submitted the involvement of a lawyer would enhance the efficiency of the matter by assisting the Respondent to navigate the complexities of the application and ensure the Respondent remains focused on the relevant issues. It was also noted that the relevant representatives of the Respondent would likely be appearing as witnesses in relation to the Application.
The Respondent also relied on the grounds in s.596(2)(b) and submitted the Respondent is a small business employing only 11 staff and who does not employ any human resources, legal or industrial relations specialists or anyone with advocacy expertise, experience with Commission proceedings or the general protections provisions of the Act.
The Applicant objected on the basis that he did not have the means to secure legal representation and that granting permission would create a power imbalance.
Notwithstanding the Applicant’s objection, having considered the materials before the Commission and submissions made I determined that granting the Respondent legal representation would assist the Commission in keeping the matter focused on the statutory considerations and disputed facts relevant to the objection raised by the Respondent and would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. As such, I granted permission pursuant to s.596(2)(a) of the Act.
The Applicant filed submissions on 17 June 2024, and the Respondent filed submissions on 24 June 2025, addressing whether an extension of time should be allowed for the making of the application.
When was the Applicant dismissed?
In his application the Applicant indicated that he was notified of his dismissal in November 2019 however during the hearing the Applicant indicated that he did not recall when his employment ended other than that it was in the later part of 2019.
The Respondent submitted that the Applicant was dismissed on 3 September 2019. In support of this, the Respondent provided a copy of an email from Richard McDowell, General Manager of the Respondent, to the Applicant dated 10 September 2029 which stated:
“Hi Branden
This email is to confirm our discussion on the 3 September 2019 where EMS has elected not to continue your employment, effective on the 3rd September 2019.
As discussed with you this termination is within your probationary period with the company.
EMS will discharge its liabilities to you and pay your entitlements on Wednesday 11 September 2019”.
Matthew McDowell, the owner and director of the Respondent, gave evidence that on 3 September 2019 he met with the Applicant, together with Richard McDowell, and informed the Applicant that his employment was being terminated in his probationary period.[1] This was consistent with the evidence of Richard McDowell.[2]
I accept that Matthew McDowell and Richard McDowell notified the Applicant of his dismissal in a meeting on 3 September 2019 I find that the Applicant was dismissed on that same date.
Section 366(2)(a) - the reason for the delay
Submissions and evidence
The Applicant submitted that the delay in making the application was not due to a lack of awareness or disregard for the time frame but was caused by genuine and reasonable apprehension of retaliation, retribution, or adverse consequences for the Applicant in his current employment. In particular, the Applicant submitted:
he commenced employment with his new employer, Electra Lift Co Pty Ltd (Electra Lift) shortly after his dismissal from the Respondent;
several employees of the Respondent, including Matthew McDowell, previously worked for the Electra Lift and maintained active personal and professional connections within the new employer and industry;
after the Applicant commenced employment with Electra Lift, fabricated and damaging rumours concerning the Applicant’s conduct while working for the Respondent were disseminated to employees of Electra Lift;
the rumours originated from the Respondent’s personnel and required the Applicant to engage in discussions with Electra Lift to correct the record and defend his reputation;
the Applicant held a reasonable and genuine fear that making a claim during this sensitive time would escalate the situation and lead to possible reprisal from individuals within both the Respondent and Electra Lift, potentially jeopardising the Applicant’s continued employment and professional reputation;
the Applicant’s fear, need to stabilise his employment and clarify misinformation at his new workplace contributed to the delay in lodging the application.
The Respondent submitted that Matthew McDowell has relationships within Electra Lift and elsewhere in the industry and this is not uncommon or unusual given that the elevator segment of the industry is relatively small. The Respondent also submitted that Richard McDowell was contacted by Electra Lift for a reference prior to Electra Lift employing the Applicant and it may be inferred from the Applicant’s subsequent employment that neither Matthew McDowell nor Richard McDowell disparaged the Applicant. The Respondent submitted that the Applicant’s alleged fear of ‘reprisal’ was without merit.
In this regard, Matthew McDowell gave evidence that:
between 2016 and 2018 he was engaged by Electra Lift from time to time as an independent contractor;
the elevator segment of the industry is relatively small;
as an owner and director of the Respondent he maintains professional connections with a network of persons working within the lift industry, including Electra Lift;
he did not have any contact with Electra Lift regarding the Applicant or his employment with Electra Lift;
he was not aware of any other personnel of the Respondent contacting Electra Lift regarding the Applicant during his employment with them, although he was aware that Electra Lift contacted Richard McDowell about his suitability prior to commencing work with the Electra Lift, although he was not personally involved in that discussion and was not aware of it at the time.[3]
Richard McDowell gave evidence that:
in or around November or December 2019, he was contacted by a representative from Electra Lift who he has a professional connection with, who enquired about the Applicant’s time as an employee of the Respondent;
he advised the representative that the Applicant was not a great fit for the Respondent’s business, which required its Lift Technicians to work independently due to its small size, however he may be better suited to work at Electra Lift given his understanding it was a bigger company;
he did not have any subsequent contact with Electra Lift regarding the Applicant and was not aware of any other personnel of the Respondent contacting Electra Lift during the Applicant’s employment with them.[4]
The Respondent noted that the Applicant registered his own company, Hysen Elevators, on or about 19 February 2024. During the hearing the Applicant indicated that his business was not operational.
The Respondent also noted that the Applicant was employed by
Electra Lift until at least December 2021;
TK Elevator from about May 2022 to January 2024; and
Easy Living Services Pty Ltd during 2024, at least until 20 August 2024.
During the hearing the Applicant acknowledged that he was employed by the entities identified by the Respondent but indicated that he did not make his application during his employment with any of these entities because of continued fear of retribution.
In this regard the Respondent submitted that it is completely implausible that the Applicant remained in a state of “fear” about his former employer’s potential “reprisal” for a period of more than five years, and through at least three employers.
The Respondent further submitted that whilst the Applicant did not squarely make any suggestion that his “fear” impacted his mental state, to the extent that this may be inferred, such a submission should be rejected because:
no evidence has been provided of such an impact;
even if there was a genuine fear, beyond that normally experienced by an employee whose employment has been terminated, that fear could not have subsisted for more than five years and through a variety of employers;
during the period of the delay, the Applicant commenced Commission proceedings against a putative employer[5] demonstrating that he has capacity to manage his legal affairs with respect to his employment; and
the Applicant’s “fear” of “reprisal” does not extend to inhibiting him from commencing proceedings against an extant employer (as opposed to one who had terminated his employment some five years previously).
Consideration and finding
I accept Matthew McDowell’s evidence that he did not have contact with Electra Lift regarding the Applicant or his employment with Electra Lift. While Richard McDowell had a conversation with a representative of Electra Lift about the Applicant, the nature of this conversation could not have been such that it harmed the Applicant’s employment prospects because the Applicant was ultimately employed by Electra Lift and it was not contested that he remained employed with them until December 2021. In this context, I accept Richard McDowell’s evidence that he simply advised the representative that the Applicant was not a great fit for the Respondent’s business, which required its Lift Technicians to work independently due to its small size, however he may be better suited to work at Electra Lift. Given the matters raised by the Respondent as the reasons for the Applicant’s dismissal, which I deal with further below, the feedback provided by Richard McDowell to Electra Lift was mild in nature. Having regard to these matters I do not accept that either Matthew McDowell or Richard McDowell set out to disparage or otherwise harm the Applicant’s employment prospects following his dismissal.
There is no evidence of a medical condition that affected the Applicant’s ability to make an application within 21 days. As noted by the Respondent, within this period the Applicant has also brought an application in relation to an employer who employed him at the time indicating that he was able to make applications to the Commission earlier than the time that he made the application the subject of these proceedings.
The Applicant’s evidence and submissions suggest he was concerned about the Respondent’s reaction if he was to bring an application and the associated impacts upon his employment. It is a common occurrence that persons who believe they have been dismissed from their employment on some improper basis will need to decide whether to make an application to the Commission. Contested legal proceedings are often uncomfortable processes to be involved in and a person making an originating application may indeed worry about how the other party will respond. Further, it is understandable that a prospective applicant may hold some fear or concern about other persons, including future employers, becoming aware of the application. Even if this is not through the actions of the other parties concerned in the matter, the nature of legal proceedings conducted in a way that has regard to the principles of transparency and open justice mean that decisions are ordinarily published. In these circumstances there is a risk that persons beyond the direct parties to the application will learn about it, including the competing facts advanced in the matter.
For these reasons I accept that the Applicant may have held a fear about what the Respondent might say about him and impacts for his employment if he made the application, however in the circumstances of this matter the evidence does not establish that either Matthew McDowell, Richard McDowell or any other representative of the Respondent engaged in a course of conduct so unusual such that it should have caused the Applicant fear beyond a level of what may normally be experienced by an employee whose employment has been terminated. I do not consider that the fear held by the Applicant provides an acceptable explanation for him not make his application within 21 days. Further, the evidence does not establish conduct on the part of the Respondent or its employees that would reasonably lead the Applicant to hold persistent concerns about reprisal across what is a very significant period of delay, being 2073 days.
I do not consider that reasons advanced by the Applicant provide a reasonable or acceptable basis for such a delay and this weighs against allowing an extension of time.
Section 366(2)(b) - any action taken by the person to dispute the dismissal
The Respondent submitted that other than the Application, the Applicant has provided no evidence of any action that he took to dispute the dismissal at any time since the dismissal took place on 3 September 2019.
Matthew McDowell gave evidence that at no time did the Applicant contact him directly about his dismissal either at the time of the dismissal or in the following years and the first time he became aware of the Applicant’s grievance was when he received notification from the Commission of the application.[6]
During the hearing the Applicant indicated that he did not take any action to dispute the dismissal before making his application. While the Applicant also indicated that he provided the Respondent with a ‘letter of demand’ on 8 May 2025, this was the day after he made his application to the Commission.
I find that no action was taken to dispute the dismissal before the Applicant made his application and this weighs against allowing an extension of time.
Section 366(2)(c) - prejudice to the employer (including prejudice caused by the delay)
The Applicant submitted that there would be no prejudice to the employer if the extension of time was allowed.
The Respondent noted that the extension of time being sought is 2,052 days, or 97 times the period stipulated in the Act, and submitted that the extensive nature of the delay will create a significant prejudice. In this regard the Respondent referred to the remarks of McHugh J that:
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.
…
Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension’ (Respondent’s emphasis).[7]
If the extension of time was allowed, the Respondent would need to defend against an application where the reasons for the Applicant’s dismissal are in contest and the events concerning the dismissal occurred a very long time ago such that relevant evidence concerning those events is likely to be lost. For example, during the hearing the Applicant asked Matthew McDowell if he could “show him” evidence of the deficiencies in his work performance as referred to in his witness statement. While Mr McDowell was able to recall an example of issues that arose in respect of work for a particular client, there are obvious challenges in seeking to elicit further evidence about matters occurring such a long time ago and based on recollection. Even the Applicant struggled to recall specific details such as the date of his dismissal. Such an extensive delay would be particularly problematic for the Respondent if the matter proceeds to a hearing of the merits and the presumption in s.361 of the Act is enlivened.
The extent of the delay is such that I consider that it is likely to result in prejudice to the Respondent.
Section 366(2)(d) - the merits of the application
In his application the Applicant indicated that:
· he worked for the Respondent from 20 June 2019 until a later date in 2019;
· one day Richard McDowell and Matthew McDowell forced him to attend a meeting and gave an ultimatum that the Applicant accept a decrease in his wage or be dismissed;
· the proposed decrease in pay was less than minimum wage.
The Applicant also raised other matters in his application including that:
executives of the Respondent did not provide him with the resources to complete the work they had instructed him to do and called him after work and ‘hounded him’ to find out when these jobs would be finished;
the Respondent did not provide a certificate concerning his termination of employment, notice or redundancy pay;
the Applicant was denied a ‘right to switch off’;
the Respondent did not follow the dispute resolution process in the award;
the Respondent breached work health and safety laws;
he was subjected to bullying.
The Respondent submitted that the application is without merit for the following reasons:
the application fails to disclose any underpinning right or entitlement pursuant to which he says he had exercised a workplace right, which is a matter that he is required to establish before s.361 of the Act is enlivened;
the Respondent has provided evidence to demonstrate that no such workplace right was exercised;
even if the Applicant is able to enliven s.361 of the Act, the evidence supports that the reason for the dismissal was related to the Applicant’s performance and not the alleged exercise of a workplace right.
Matthew McDowell, the owner and director of the Respondent, gave evidence that:
the Applicant commenced employment with the Respondent on 20 June 2019 as a lift technician;[8]
a few weeks into the Applicant’s employment he observed that the Applicant’s ability and skills in installing or finding faults in basic electrical circuits was far below the standard and technical ability required for him to be able to independently perform the role of Lift Technician;
in particular he noticed that the Applicant was causing damage to electrical short circuiting and burning circuit boards[9] and Matthew McDowell gave an example of this during cross examination;
following a discussion with Richard McDowell, the Respondent’s General Manager, a decision was made not to continue with the Applicant’s employment;[10]
on 3 September 2019 he met with the Applicant, together with Richard McDowell, and informed the Applicant that his employment was being terminated in his probationary period;[11]
he was not aware that the Applicant made any complaints or raised any concerns relating to his wages, bullying, safety or other matters during his employment;
the reason for the decision to terminate the Applicant’s employment was solely based on his performance and suitability for the role.[12]
During cross examination Matthew McDowell’s evidence was to the effect that the deficiencies in the Applicant’s performance were such that asking the Applicant to stay on with lesser pay was not considered at all and that the Applicant needed to be dismissed within his probatory period.
Richard McDowell, the General Manager of the Respondent, gave evidence that:
during his recruitment, the Applicant led the Respondent to believe he was capable of performing the role of Lift Technician to the required standard;
a few weeks into the Applicant’s employment he noticed that the projects the Applicant was assigned to work on were behind in their progress and that customer delivery dates would be missed;
he was informed by Matthew McDowell that he had observed that the Applicant’s work and skills were not to the standard and technical ability required by the Respondent and that he lacked the capability to safely and satisfactorily fulfil the role for which he had been employed;
following a discussion with Matthew McDowell, he was satisfied that the Applicant was not performing the requirements of his role effectively, and a decision was made not to continue with the Applicant’s employment;
on 3 September 2019 he met with the Applicant, together with Matthew McDowell and informed the Applicant that his employment was being terminated during his probationary period;
the Applicant had only been employed for two and a half months at this point and the Applicant’s employment was terminated with one weeks’ pay in lieu of notice;
the Applicant did not perform any work for the Respondent after 3 September 2019;
he was not aware that the Applicant made any complaints or raised any concerns relating to his wages, bullying, safety or other matters, during his employment;
the reason for the decision to terminate the Applicant’s employment was solely based on his performance and suitability for the role.[13]
During cross examination Richard McDowell indicated that the sole reason for the dismissal was because the Applicant was considered to have not met the requirements of his role during his probationary period.
I found the evidence of both Matthew McDowell and Richard McDowell concerning the reasons for the Applicant’s dismissal to be persuasive. However I note that the Applicant was self-represented and that the focus of his submissions and evidence was not on the merits of the case in a substantive sense, given that the issue before me is whether an extension of time should be allowed. In this regard the Applicant appears to dispute that his work performance was an issue and on the morning of the hearing provided what appears to be a reference dated 20 August 2017. Following the hearing the Applicant emailed Chambers and said:
“A credible witness has recalled having a conversation with Timothy (a.k.a Tim) Steenkamp (owner and director of Equity Elevators Pty. Ltd. and Lift Consultant). Tim and EMS were associated in 2019 and may still be associated today. The statement uttered by Tim communicated to the witness words to the effect, “Branden’s enjoying the job so much that EMS would test him and set up an ultimatum to pay Branden less money for doing the same job.” The witness is happy to provide a written witness statement as a statutory declaration witnessed under oath by a Justice of the Peace”.
The Applicant did not file a witness statement in respect of this person ahead of the hearing and while the reference does not in and of itself carry any material weight in my consideration of the merits, there is clearly a contest of fact between the Applicant and Respondent about the reasons for the Applicant’s dismissal and whether there was a meeting in which the Applicant was provided with an ultimatum to the effect that he needed to accept a wage that was below minimum wage or be dismissed. I find that the merits of the application will necessarily turn on the evidence and developed legal arguments and that it is not possible to make an assessment of the merits of the application based on the limited material before me.
Section 366(2)(e) - fairness between the person and other persons in a like position.
The 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.”[14]
The Applicant did not bring to my attention any matters currently before the Commission or others previously decided by the Commission relevant to this consideration.
The Respondent submitted that fairness as between the Applicant and others in a like position weighs against a finding of exceptional circumstances. In this regard the Respondent referred to the matter of Graves v Maritimo Labour Pty Ltd [2024] FWC 1446 in which the Commissioner attached weight to the evidence inaction by the applicant to prosecute his case in that matter in arriving at a finding that she was not satisfied that there were exceptional circumstances in favour of an extension.[15] The Respondent also referred to the matter of Fisher v BHP WAIO Pty Ltd.[16] While some of the general principles referred to in those cases may be relevant to a consideration of s.366(2), having considered the facts involved in both matters I not consider the Applicant and applicants in those matters are in a like position as the facts are distinguishable.
I consider this to be a neutral consideration.
Conclusion
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.[17] 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.[18]
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding the matters in s.366(2) of the Act. By way of summary, these include that:
· the reasons advanced by the Applicant do not provide a reasonable or acceptable basis for such a delay;
· the Applicant did not take any action to dispute his dismissal prior to making his application 2073 days outside of the 21 day period;
· the Respondent would suffer prejudice by having to defend against a claim that is made 2073 days outside of the 21 day period and over five years since the Applicant’s dismissal, a significant period after the events relating to the making of the application are alleged;
· the merits of the application will necessarily turn on the evidence, noting there is a contest of facts concerning the reasons for the dismissal whether the Applicant was asked to take a reduction in pay or be dismissed; and
· I have found s.366(2)(e) to be a neutral consideration.
I am not satisfied that there are exceptional circumstances after considering the above matters individually as well as in combination.
Having regard to all of the matters at s.366(2) of the Act, I am not satisfied that there are exceptional circumstances and as such there is no basis for the Commission to allow an extension of time. The application is dismissed.
COMMISSIONER
Appearances:
Deysel, B. on his own behalf.
Willoughby, P. for the Respondent.
Hearing details:
2025.
1 July, by video using Microsoft Teams.
[1] Matthew McDowell Statement at [6].
[2] Richard McDowell Statement at [10].
[3] Matthew McDowell Statement at [10] – [12].
[4] Richard McDowell Statement at [13] – [14].
[5] Deysel v Easy Living Services Pty Ltd and Ors [2024] FWC 2953.
[6] Matthew McDowell Statement at [13].
[7] Brisbane South Regional Health Authority v Taylor [1996] HCA 25.
[8] Matthew McDowell Statement at [4].
[9] Matthew McDowell Statement at [6].
[10] Matthew McDowell Statement at [7].
[11] Matthew McDowell Statement at [8].
[12] Matthew McDowell Statement at [9].
[13] Richard McDowell Statement at [5] – [12].
[14] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].
[15] Maarino Graves v Maritimo Labour Pty Ltd [2024] FWC 1446 at [30].
[16] [2022] FWC 1694.
[17] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[18] Ibid.
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