Mr Daniel Perez Gonzalez v Heathgate Resources Pty Ltd T/A Heathgate Resources Pty Ltd
[2018] FWC 7602
•17 DECEMBER 2018
| [2018] FWC 7602 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr Daniel Perez Gonzalez
v
Heathgate Resources Pty Ltd T/A Heathgate Resources Pty Ltd
(U2018/3860)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 17 DECEMBER 2018 |
Unfair dismissal application – request for re-opening discontinued matter – application against host business in labour hire arrangement - principles applicable to re-opening – jurisdictional issues – application to re-open dismissed
[1] This decision concerns a request made on 19 November 2018 by Mr Daniel Perez Gonzalez (Mr Perez Gonzalez or ‘the applicant’) to re-open an unfair dismissal application (U2018/3860) that had been discontinued.
[2] The respondent to the application is Heathgate Resources Pty Ltd (Heathgate).
Background
[3] On 12 April 2018 Mr Perez Gonzalez lodged an unfair dismissal application under section 394 of the Fair Work Act 2009 (FW Act).
[4] Heathgate filed a response dated 4 May 2018 in which it contended that Mr Perez Gonzalez was not its employee and further that he was not dismissed. The response asserted that Mr Perez Gonzalez had been employed by a labour hire agency. The response was received by both the Commission and Mr Perez Gonzalez.
[5] On 7 May 2018 the parties were advised that the application had been referred to a Commission-appointed conciliator and that conciliation would take place by telephone on 10 May 2018.
[6] A conciliation conference was conducted on 10 May 2018 by a Commission-appointed conciliator.
[7] Following that conference, the Commission-appointed conciliator wrote to Mr Perez Gonzalez and to Heathgate in the following terms:
“Dear Applicant and Respondent,
Application for Unfair Dismissal Remedy
Title: Perez Gonzalez, Daniel v Heathgate Resources Pty Ltd T/A Heathgate Resources Pty Ltd
Fair Work Commission File Number: U2018/3860
Thank you for your participation in the conciliation of the above matter. As a result of the conciliation of the matter, the Applicant has advised that they wish to discontinue their application. The matter is now taken to have been discontinued in accordance with Rule 10 of the Fair Work Commission Rules 2013. The matter is now closed.
For completeness, the Applicant should fill in return a Notice of Discontinuance (Form F50), a blank copy of which can be found below. The Applicant should provide a copy of the completed Form F50 to the Respondent as well. This can be done by fax, email or by post.
The Fair Work Commission (the Commission) will refund the application fee, if applicable, within four to six weeks of receipt of the Form F50.
Please note that generally, any correspondence or documents sent to the Commission must also be sent to the other party. The Commission may forward your correspondence and documents to the other party. If you are concerned about correspondence or a document being forwarded by the Commission, you should contact the Commission before sending it.
To assist the Commission in monitoring its unfair dismissal applications’ procedures, it would be appreciated if you could each please take the time to complete this short form and provide us with your valuable feedback regarding your experience. All feedback is confidential, with no parties identified during the process.
Please select the following link to complete the form:
This concludes my involvement in the matter.
Yours sincerely
Conciliator
Fair Work Commission”
[8] The conciliator’s 10 May 2018 correspondence attached a draft a Notice of Discontinuance (Form F50) for completion by the applicant.
[9] One month later, on 12 June 2018 at 11.36pm Mr Perez Gonzalez forwarded a completed Notice of Discontinuance to the Commission under cover of an email as follows:
“Hi
See attached
Kind Regards
Daniel Perez Gonzalez”
[10] The Commission file was administratively closed later that day, 12 June 2018.
[11] Commission records indicate that on 15 November 2018 Mr Perez Gonzalez made a telephone call to an administrative staff member of the Commission to the effect that he was dissatisfied with the way his matter concluded, wished to have his application re-opened and wished to lodge a complaint concerning the conciliator. He was informed that if he sought to re-open his unfair dismissal claim he would need to “write to the FWC and make that request”. He was also informed of the mechanism to lodge a complaint. Mr Perez Gonzalez’s evidence was that he may have made one or two telephone calls to the Commission in the days preceding 15 November 2018 to similar effect.
[12] By email to the Commission on 19 November 2018 at 11.23am Mr Perez Gonzalez made a written request for re-opening in the following terms:
“Good Morning
I would like the case for unfair dismissal from the subject to be reopened.
I only retracted it based on the false and misleading information given to me by the conciliator of which I have already voiced my complaints about her conduct to '[email protected]'.
Please make available whatever documentation I need to pursue this.
Kind Regards
Daniel Perez Gonzalez”
[13] On 27 November 2018 the application for re-opening was referred to me for hearing and determination.
[14] On 3 December 2018 I issued directions to the parties requiring the filing of written materials in relation to the application for re-opening. I received a written submission from Mr Perez Gonzalez on 7 December 2018. I received a written submission from Heathgate on 10 December 2018.
[15] On 13 December 2018. I conducted a hearing by telephone on the re-opening application. Mr Perez Gonzalez was self-represented. The respondent was represented by Mr Cooke of the Australian Mines and Metals Association and by Ms Jacques of Heathgate.
[16] I reserved my decision at the conclusion of proceedings.
The Evidence
[17] Having not filed a witness statement but with assistance from myself, Mr Perez Gonzalez gave oral evidence and was cross examined on his evidence. Both Mr Perez Gonzalez and Heathgate made oral submissions in support of their written materials.
[18] Mr Perez Gonzalez was an honest witness. He has forthright views about the legitimacy of his claim and a belief (whether or not misplaced) that Heathgate in practice and in law dismissed him. He was open about the following in his evidence:
1. He did not at any relevant time enter into a contract of employment or a contract for services with Heathgate;
2. He entered into a contract of employment with RV Labour Hire Pty Ltd on 13 June 2017 trading as Recruitment Vision. Recruitment Vision supplied labour to Heathgate. Heathgate was the host business, Recruitment Vision the labour hire company;
3. His pay slips were from Recruitment Vision and these classified him as a casual employee, although he does not believe that at law or in practice he was a casual;
4. His remuneration including superannuation was paid by Recruitment Vision and not Heathgate;
5. He chose to sue Heathgate in his unfair dismissal application because he believed they made the decision to dismiss him;
6. He could have but did not take advice at the time of making his unfair dismissal application or in the month between making his application and the Commission-appointed conciliation. He concedes that he was “overconfident”, a “bit reckless in my decision making” and may have operated on a “false assumption”;
7. He received Heathgate’s response (F3) in May 2018 and knew before the conciliation that the respondent was taking an objection that he was neither employed by Heathgate nor dismissed by Heathgate;
8. He spoke to lay friends about his position in the month between the conciliation (10 May) and sending the Notice of Discontinuance (12 June) but did not feel he needed legal advice because he was assuming that the conciliator was correct in (what he claims) was her suggestion that he did not have a case against Heathgate;
9. He sent the discontinuance to the Commission without any other settlement of his claim having been reached and with no other involvement from Heathgate;
10. It was not until he read about the ‘control test’ while undertaking tertiary studies for a Bachelor of Commerce in October 2018 that he believed the conciliator was wrong and that he had a legitimate claim;
11. It was not until after he came to this knowledge in October 2018 that he consulted a legal advisory service; and
12. He had, at the time of filing his unfair dismissal claim, perused the Commission website for information.
[19] I accept this evidence and make findings in those terms on each of these matters.
[20] Mr Perez Gonzalez was also clear in his evidence that he did not believe that the circumstances of him leaving Heathgate’s workplace were as a result of his conduct. He denied that he had made himself unavailable for ongoing work. He claimed that he had only made himself unavailable for the next roster (a ‘swing’). He believes he had been unfairly treated in terms of duties and remuneration given his commencing position as a chemist and his qualifications.
Consideration
[21] The issue before me is whether I should grant Mr Perez Gonzalez’s request to re-open his unfair dismissal application.
[22] The grounds on which Mr Perez Gonzalez seeks to re-open his application emerged from his oral evidence. In essence there are two grounds:
• Firstly, he believes he was misled by the conciliator in May 2018 in that the conciliator (he asserts) told him that he had sued Heathgate who was not his employer, that he should therefore discontinue and that the conciliator did not tell him about the ‘control test’; and
• Secondly, his understanding of his legal position (in his view) improved dramatically in October and November 2018 after he read about the ‘control test’ and spoke to a legal advisory telephone service.
Power to re-open
[23] The Commission can only re-open an application if it has the power to do so. Only if it has the power to do so does the question arise whether it is appropriate to do so.
[24] The Commission has a discretionary power to re-open proceedings under its general procedural powers in section 589 of the FW Act. 1
[25] However, in this matter the application to re-open is not a function of Mr Perez Gonzalez’s primary unfair dismissal application having been dealt with by the Commission to finality or having been the subject of a settlement agreement. Rather Mr Perez Gonzalez is seeking to re-open a matter which he discontinued.
[26] Mr Perez Gonzalez discontinued his application on 12 June 2018. He may have done so orally to the conciliator on 10 May (as suggested by the conciliator’s correspondence of that day). If so, rule 10(2)(c) of the Fair Work Commission Rules 2013 operated to discontinue his application. In any event, Mr Perez Gonzalez discontinued his application on 12 June 2018 by submitting a written notice of discontinuance in accordance with the Commission’s procedural rules. He exercised a right to discontinue conferred on an applicant by section 588 of the FW Act.
[27] In essence, Mr Perez Gonzalez is asking for his notice of discontinuance to be set aside in order for his unfair dismissal application to be re-opened. There may be some circumstances where only a court and not the Commission has power to do so. In Caruso v Pittwater RSL Club Limited a full bench of the Commission observed as follows:
“[30] While Mr Caruso seeks, through this appeal, a further mediation or conciliation and the opportunity to present his case again, there was a notice of discontinuance filed on 27 July 2018. Once filed, a notice of discontinuance is self-executing and, in Mr Caruso’s case, it brought his unfair dismissal application to an end. A Full Bench of the Commission in AB v Tabcorp Holdings Limited has previously stated:
“We agree with the proposition that in certain circumstances a notice of discontinuance can, in effect, be set aside if it was filed by mistake or under duress. However we doubt that such a power may be exercised by the Commission. It seems to us that any such application would have to be made to a court - for a declaration that the notice was a nullity. As an arbitral body the Commission cannot grant declaratory relief…”
[31] As such, if Mr Caruso wants to have the notice of discontinuance set aside on the basis it was filed by mistake or under duress, such application would have to be made to a court. While we are not without sympathy for the circumstances Mr Caruso finds himself in, we do not have the power to set aside the notice of discontinuance filed on 27 July 2018.” 2 (references omitted)
[28] Mr Perez Gonzalez does not expressly assert that he discontinued under duress or by mistake. It is however inferential. He says he was not forced to do so and did not unintentionally do so. His contention is more in the nature of a claim that he discontinued by what he considers a mistaken belief about the state of the law, a belief he believes he was erroneously given by the conciliator.
[29] It is quite likely, based on the principle set out in Caruso v Pittwater RSL Club Limited that, even were I minded to re-open Mr Perez Gonzalez’s application that only a court and not the Commission would have the power to set aside his notice of discontinuance. In the absence of that power I would be unable to re-open.
[30] However, given that this legal issue is attended by a degree of uncertainty, I will proceed to determine the re-opening question as if I were fully empowered by the FW Act to do so.
Is it appropriate to re-open?
[31] Whether Mr Perez Gonzalez’s application should be re-opened is a discretionary matter. It is discretion to be exercised objectively and according to judicial principles. In considering whether to do so an appropriate starting point is the Commission’s general obligations expressed in section 577 and 578 of the FW Act:
“577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.”
“578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
[32] I have regard to these general duties and apply them in the context of the following matters I consider of particular relevance to determining this matter:
• The unfair dismissal statutory scheme;
• The history of the matter (including the conduct of the parties);
• The length of the delay;
• The reason for the delay; and
• Prejudice (if any) should the matter be re-opened (including the prospects of success).
The unfair dismissal statutory scheme
[33] Mr Perez Gonzalez’s application was made under Part 3-2 of the FW Act ‘Unfair Dismissal’. The statutory scheme establishes a framework that does not exclusively focus on a dismissed employee. The framework seeks to balance “the needs of business” and “the needs of employees”.3 It has the further object of providing procedures that are “quick, flexible and informal”.4 It provides remedies with an emphasis on reinstatement.5 It requires applications to be made within a short time period after dismissal (21 days), with an extension of time only in exceptional circumstances.6 Compensation orders for an unfair dismissal can only be made if reinstatement is inappropriate and even then, only at the discretion of the Commission.7
[34] This statutory framework makes the jurisdiction only available to persons who were employees of an employer. Other jurisdictional prerequisites apply. It places emphasis on accessing the jurisdiction and having matters determined in relative close proximity to the date a dismissal takes effect. There are clear policy reasons for doing so. The primary remedy (reinstatement) is less viable the longer a dismissed employee has been absent from the workplace. An employer’s business is not a static concern. A dismissed employee needs to know of their rights and get on with their life, one way or the other, within a reasonable period after dismissal.
[35] The FW Act’s statutory scheme also places emphasis on conciliation between the parties as a precursor to Commission arbitration.8
[36] In this matter, the emphasis placed by the statutory scheme on the proximity between the date a dismissal takes effect and the date a matter is determined is a factor that weighs against the matter being re-opened.
[37] Further, it is a condition precedent in the statutory scheme that a claim can only be made against an employer who employed the dismissed employee. This factor weighs strongly against this matter being re-opened.
[38] On the evidence before me there would appear to be a substantial statutory barrier to Mr Perez Gonzalez’s claim being within jurisdiction: he does not appear to have been employed by the entity he has sued. His evidence was that he has never been employed by Heathgate, yet has elected to issue proceedings against Heathgate and not the labour hire company that employed him. He still maintains that position.
[39] If his application is re-opened, Mr Perez Gonzalez intends to contend that whilst Heathgate was not known as or intended to be his employer, at law it can be regarded as his employer because of the level of control he says it exercised over him as the host business in a labour hire arrangement. He refers to the ‘control test’.
[40] The control test has been formulated and used over many years at common law (and by the Commission) to determine whether a worker is an employee or independent contractor. Whilst relevant to determining whether a person is an employee or independent contractor, it is not conclusive in assessing whether a respondent is a labour hire employer or alternatively, a non-employer host business. As recently said by a full bench of the Commission in Spinifex Australia Pty Ltd t/a Spinifex Recruiting v Tait, in the context of labour hire arrangements:
“[50] The authorities we have referred to make clear that the nature of the employment arrangement in a particular case will depend on an examination and analysis of the employee’s employment contract…” 9 (my emphasis)
[41] Mr Perez Gonzalez’s submission appears to be misconceived. Heathgate’s jurisdictional challenge does not contend that Mr Perez Gonzalez was an independent contractor. Heathgate appears to accept that he was an employee, but not its employee. It contends (and the evidence before me supports) the proposition that Mr Perez Gonzalez was an employee of the labour hire company, Recruitment Vision.
[42] It is true that the description given to a relationship and a belief held by the parties about the nature of that relationship are not determinative. Matters of substance and not just labels or intent are relevant to determining that question. Yet even were Mr Perez Gonzalez to have taken action against both Heathgate and Recruitment Vision (which he has not done), a substantial jurisdictional hurdle in proceeding against Heathgate would remain given that no concept of joint employment applies in the Australian jurisdiction. As said by a full bench of the Commission in FP Group Pty Ltd v Tooheys:
“In no case has an Australian court approached the analysis on the basis that the exercise of control over the worker by the hirer of labour in a labour hire arrangement may render the hirer, together with the labour hire company, a joint employer of the worker.” 10
[43] Although I have not fully heard all possible evidence and submissions about the dealings between Heathgate, Recruitment Vision and Mr Perez Gonzalez, and whilst the law on the application of the unfair dismissal jurisdiction to labour hire arrangements may not be fully settled, my provisional view is that there is a very low level prospect of success where an action is taken against a non-employing host business particularly in circumstances where that action does not involve a claim against the employing labour hire company. That non-employing business is a third party to the employment relationship. As noted by the Commission in Kool v Adecco:
“A labour hire employee seeking to contest such action by making an application for an unfair dismissal remedy, faces considerable difficulty, principally because the host employer is not the employer of the labour hire employee.” 11
[44] Further, under the FW Act, orders in unfair dismissed proceedings can only be made against an applicant’s former employer. If a respondent against whom action is taken is not found to be that employer then the application is not within jurisdiction and further proceedings on the application are futile.
[45] The current unfair dismissal statutory scheme and in particular the fact that Mr Perez Gonzalez was not, on the face of the material before me, an employee of the host business against whom he has issued proceedings weighs strongly against exercising a discretion in favour of re-opening.
The history of the matter (including the conduct of the parties)
[46] I have recited the history of this matter.
[47] Mr Perez Gonzalez made his application in a timely manner, within 21 days after his alleged dismissal took effect.
[48] Heathgate responded in a timely manner, as required by Commission rules.
[49] The conciliation was held in a timely manner, and both parties participated.
[50] The letter by the conciliator of 10 May 2018 was sent the day of the conciliation conference. It is evidence that at least an in-principle agreement had been made by Mr Perez Gonzalez to discontinue.
[51] Mr Perez Gonzalez had plenty of time after receiving that letter to consider his position. It was a month later, 12 June, when he returned the notice of discontinuance causing the Commission file to be administratively closed.
[52] The fact that the matter proceeded to conciliation in the orthodox manner and that the conciliator informed Mr Perez Gonzalez of the steps needed to formally discontinue, and that he then did so without interference by the Commission or by Heathgate, is a factor that weighs strongly against the matter being re-opened.
The length of the delay
[53] The delay between the discontinuance and the request for re-opening is five months. This is a substantial delay particularly in the context of a statutory scheme which places emphasis on the jurisdiction being “quick, flexible and informal”.
[54] The length of the delay in this matter is a factor that weighs against the matter being re-opened.
The reason for the delay
[55] Mr Perez Gonzalez’s reason for the delay is based on the ground that it was not until October / November 2018 that he learnt of the ‘control test’ and that he sought advice from a legal advisory service.
[56] Whilst this may explain why Mr Perez Gonzalez seeks to have his application re-opened, neither are convincing reasons for the delay.
[57] Mr Perez Gonzalez had opportunity to take legal advice at three different junctures: at the time he lodged his application, in the month between the time he lodged his application and the conciliation, and in the month between the conciliation and filing his notice of discontinuance. He failed to do so. His only explanation for not doing so was an honest concession that he may have been “overconfident” about his prospects.
[58] Overconfidence is not a reasonable excuse for not taking advice. In any event, Heathgate was open about its decision to take a jurisdictional challenge to his application. This was known by Mr Perez Gonzalez from 4 May 2018 when Heathgate filed its F3 response. From then at least it ought to have been clear to Mr Perez Gonzalez that advice should be sought whatever level of confidence he held about his prospects. Further, at the very least after the conciliator informed him (if in fact she did) that he would be unlikely to succeed against Heathgate and could or should discontinue, at that point it ought to have been patently clear that if he wished to proceed then he would need to test his belief in his prospects against some independent legal advice. He did not do so.
[59] Beyond 12 June, a further five months delay occurred. In the first four of those five months, until reading about the control test in October 2018 Mr Perez Gonzalez did not try to set aside his discontinuance, did not take advice on it and did not intend to prosecute or enliven his application. There is no acceptable explanation for the delay across that period.
[60] Whilst Mr Perez Gonzalez moved reasonably promptly to seek to re-open his application once he had read about the control test and spoke to a legal advisory service, large portions of the delay are unexplained. Further, whilst Mr Perez Gonzalez has had what he described as two brief telephone conversations with legal aid solicitors, his evidence was that he has not yet sought a face to face meeting to receive more considered advice.
[61] The reason for the delay, being that Mr Perez Gonzalez learnt about the control test during subsequent tertiary studies, is not an acceptable reason and weighs against re-opening the application.
Prejudice (if any) should the matter be re-opened
[62] I consider prejudice in two contexts:
• Prejudice to the applicant; and
• Prejudice to the respondent.
[63] If the matter is not re-opened, the merits of the applicant’s unfair dismissal claim will not be heard and determined. However the merits cannot be considered if there is no jurisdictional basis to do so. Nor could a remedy be ordered against a non-employer. I have expressed a provisional view that a substantial jurisdictional hurdle to overcome exists in the pursuit of his claim against Heathgate.
[64] I accept that a failure to re-open the matter will deny Mr Perez Gonzalez the belated chance to address the jurisdictional issue and, if he were successful on that point, the merits of his case and his quest for a remedy.
[65] If the matter is relisted the respondent will also sustain prejudice in having to defend a discontinued matter many months after he departed the workplace, with the attendant cost and inconvenience to itself and potential witnesses. Heathgate has already put Mr Perez Gonzalez on notice by email on 5 December 2018 that it “reserves their rights to make an application against you to seek an order form the FWC to recover costs you are causing them to incur by proceeding with application U2018/3860”.
[66] In these circumstances, I consider that both Mr Perez Gonzalez and Heathgate will incur prejudice should the application to re-open be granted or not granted (as the case may be). I consider this a neutral factor.
Conclusion
[67] To the extent that the Commission is empowered to exercise discretion to re-open an unfair dismissal application in circumstances where it has been discontinued, I decline to do so. The delay is lengthy, the explanation for the delay is not convincing and the prospects of success in light of the jurisdictional hurdles faced by the applicant are very low. The statutory scheme also weighs against re-opening discontinued matters in circumstances where an applicant had an opportunity to consider their position prior to discontinuance and take advice on it, but had not done so nor did so for many months after discontinuance.
[68] In light of this decision, Mr Perez Gonzalez’s application remains discontinued and thus closed. It will not proceed to further hearing.
DEPUTY PRESIDENT
Appearances:
D. Perez Gonzalez, on his own behalf
P. Cooke and J. Jacques, for the Respondent
Hearing details:
2018.
Adelaide; by telephone.
13 December.
Printed by authority of the Commonwealth Government Printer
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1 Challinger v JBS Australia Pty Ltd[2014] FWC 4874 at [106]
2 [2018] FWCFB 5970 at [30] and [31]
3 Section 381(1)(a)
4 Section 381(1)(b)
5 Section 381(1)(c)
6 Section 394(2) and (3)
7 Section 390(3)
8 Section 595
9 [2018] FWCFB 6267 at [50]
10 FP Group Pty Ltd v Tooheys[2013] FWCFB 9605 at [41]; see also Trakas v PBL Pty Ltd and Trakas v Ready Workforce (A Division of Chandler MacLeod)[2018] FWC 1530 at [100] – [118]
11 Kool v Adecco[2016] FWC 925 at [48]
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