Mr David Seale v SHT (Aus) Pty Ltd

[2020] FWC 587

[2020] FWC 587

FAIR WORK COMMISSION

DECISION

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

Mr David Seale
v
SHT (Aus) Pty Ltd; Mr Adam Maley; Trucking Services Pty Ltd; Mr Matthew Barsley
(C2019/6913)

DEPUTY PRESIDENT LAKE BRISBANE, 10 FEBRUARY 2020

Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – extension of time – extension of time not granted – application dismissed.

[1] This decision concerns an application by Mr David Seale (the Applicant) under s. 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute in relation to his dismissal by SHT (Aus) Pty Ltd (the First Respondent). The Application also named as Respondents Mr Adam Maley (Second Respondent), Trucking Services Pty Ltd (the Third Respondent), and Mr Matthew Barsley (the Fourth Respondent).

[2] There is some dispute as to who the Applicant’s employer was at the time of his employment and, more specifically, whether the Applicant was employed by the First and Second Respondents. The Applicant’s submission is that his employment commenced with the Respondent on 20 November 2018. The Form F8 lodged by the Applicant indicates at Question 1.2 that he was notified of his dismissal on or around 27 January 2019 and that his dismissal took effect on or around 27 January 2019. The Applicant filed his general protections application at 3:49 pm on 12 November 2019.

[3] By virtue of s. 366(1) of the Act, an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2) of the Act. The period of 21 days ended at midnight on 17 February 2019. As the 17 February 2019 was a Sunday, and where the final day of the 21 day period falls on a weekend or on a national public holiday (when the Commission is closed) the timeframe is extended until the next business day. the Applicant could have lodged his application on Monday 18 February 2019 and still been in time. 1 Given the application was lodged some 268 days after 17 February 2019, this is not a relevant factor.

[4] The Applicant asks the Commission to allow a further period for the application to be made. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED

The approach to deciding whether a further period should be granted

[5] As previously noted, s. 366(1) of the Act requires that a general protections application under s. 365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.

[6] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General protections application to be made as follows:

“(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 similar position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking the granting of a further period in which to make an application. 2 A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.3 The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

•  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

•  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 4

[8] It is also not correct to construe exceptional circumstances as being only an unexpected occurrence, although frequently it will be. 5 Further, it is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.

[9] The Applicant conceded that no single circumstance in this case is ‘exceptional’, however submitted that the combination of factors, when viewed together, should be regarded as exceptional.

[10] The Applicant’s application was made 268 days after his dismissal. Submissions made on the Applicant’s behalf state that his application was not made within the 21 days of his dismissal because of the following reasons:

•  The egregious nature of the Respondent’s breaches of the FW Act, including the extent of the underpayments over a short period of time (more than $6,081.97 over two months), the immediate and absolute adverse action taken against him when very legitimate concerns were raised;

•  The Applicant’s age of 70 years and his dependence on highly insecure income as a daily hire casual truck driver, making him a highly vulnerable employee;

•  allegations that the Respondents “collectively … engaged in cynical and disingenuous strategies using different corporate personalities, in an attempt to avoid responsibility for their employment obligations, and to date have resisted the attempts of various parties to discuss these issues, including the Fair Work Ombudsman, the Applicant’s legal representatives, and the Fair Work Commission”; 6

•  Uncertainty regarding when the Applicant was actually dismissed, given he was never notified of the end of his employment by any of the Respondents.

[11] In order for the Applicant’s general protection application to proceed, it is necessary for him to obtain an extension of time under s. 366(2) of the Act. In considering an application for an extension of time, I must be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act. I will consider each of those matters in turn.

The reason for delay – s. 366(2)(a)

[12] The Commission must consider the reason for the delay. The Act does not specify what reason for delay might weigh in favour of an extension being granted, however, decisions of the Commission have referred to an acceptable or reasonable explanation. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters,  7 the Full Bench of the Commission noted an absence of an explanation for part of the delay may weigh against an extension being granted, while a credible explanation for the entirety of the delay may weigh in favour of an extension being granted. It is important to note that while reason for delay is a factor that must be considered it is not determinative and consideration must be given to all the relevant factors and assigning appropriate weight to each.8

[13] Despite the Form F8 indicating the Applicant’s dismissal took effect from 27 January 2019 and was communicated to him at this time, the Applicant submitted that it was unclear to him for a considerable period of time that he had in fact been dismissed due to the nature of the Applicant’s employment as a daily hire casual. The Applicant cited the enquiries made to his manager, Mr Thompson, where he was told that “the work has dried up” and “even the permanents are not doing their full hours”. 9

[14] The Applicant gave evidence that he had attempted to contact Mr Thompson by email on 4 Feburary 2019 and 19 February 2019 about his rate of pay for the work he had done but did not receive a response. The Applicant gave further evidence he attempted to contact the Fair Work Ombudsman for assistance. 10

[15] The Applicant contacted PCC Employment Lawyers (PCC) in regard to underpayment of wages. The Applicant gave evidence he did not believe at this time that he had been dismissed and did not discuss this with PCC.

[16] Ms Helen Carter, a director of PCC, gave evidence that she had carriage of the matter from March 2019 until August 2019 when Mr Brian Powles, a colleague, took carriage of the matter.

[17] It is well understood that each occasion a casual employee is engaged is a separate contract of employment. 11 It is also clear on the evidence that the Applicant did not work another shift after 27 January 2019. It also appears that neither the Applicant nor his representatives made further attempts to clarify his employment status after correspondence sent to Mr Thompson “a number of days” after 27 January 2019.12

[18] It is accepted that the Applicant did not work after 27 January 2019. For the Applicant to lodge a s.365 application, the Applicant must have been dismissed. Section 365 of the Act states:

“Application for FWA to deal with a 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 FWA for FWA to deal with the dispute.”

[19] No date of dismissal other than 27 January 2019 has been submitted by either the Applicant or any of the Respondents. While I accept there may be confusion as to whether the Applicant has been dismissed, for the purposes of the application before the Commission, I accept that the Applicant did not work after 27 January 2019.

[20] Hewitt v Topero Nominees Pty Ltd 13deals with the jurisdiction of the Commission in dealing with s.365 applications where there is dispute regarding whether an applicant was dismissed. It states in part:

“[40] For the reasons given, the content and structure of Subdivision A of Division 8 of Part 3-1 of the Act support the proposition that it is sufficient to give the Commission jurisdiction to conduct a conference under s.368 that a s.365 application to state on its face that the applicant has been dismissed and it is alleged that the dismissal was in contravention of Part 3-1.”

[21] The Form F8 application indicates the Applicant was dismissed on 27 January 2019 and it is alleged the dismissal was in contravention of Part 3-1 of the Act. I am unable to determine whether this date is correct, but for a s.365 application to have been lodged a dismissal must have taken place.
[22] On this basis, the application should have been filed within 21 days of this date. It was not.

[23] I observe that during the period from January 2019 until November 2019 when the application was filed, the Applicant and his representatives prepared and served several documents on the various Respondents, including a letter of demand on 8 April 2019 and a statement of claim in August 2019. The Applicant and his representatives had clear and demonstrated capacity to lodge a Form F8 at any time during this period and did not do so.

[24] I consider this factor weighs against granting an extension of time to the Applicant.

Any action taken by the Applicant to dispute the dismissal – s. 366(2)(b)

[25] Any action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favourable to the granting of an extension of time. 14

[26] The Applicant made some attempts to contact the First Respondent, notably on the 27 January 2019, 4 February 2019 and 19 February 2019. However, it appears that neither the Applicant nor his representatives made any further attempts to contact his employer after this date or to dispute the dismissal prior to the filing of his application in November 2019. This leaves a period of some nine months in which the Applicant did not take any action to dispute the dismissal.

[27] If, as submitted, the Applicant was confused as to whether he had been dismissed, the Applicant could have made further attempts to clarify his employment status or could have instructed his representatives to do so.

[28] However, I accept that the Respondents have, throughout the process of dealing with the s.365 application before the Commission, been difficult to contact. Only the Second Respondent, Mr Maley, was contactable for the listed hearing on 24 January 2020 and the Form F8A lodged on behalf of the First and Second Respondent was brief and did not address any of the issues raised by the Applicant, instead simply stating that the Applicant was not employed by either the First or Second Respondent. Mr Maley attended the hearing by telephone and made it clear that he had not been involved with the organisation since his resignation on 1 June 2018. Mr Maley later provided a statutory declaration to that effect. 15 To date, no response from the Third or Fourth Respondent has been received to any Commission correspondence.

[29] Given the above, if this pattern of behaviour from the Respondents is common practice in dealing with them as it appears on the material before the Commission, I accept it may have been difficult for the Applicant to clarify or dispute his dismissal with his employer. As such, I consider it appropriate to consider this factor as neutral.

Prejudice to the Respondent including prejudice caused by the delay – s. 366(2)(c)

[30] The Applicant submits that there has been no prejudice to the employer as a result of the delay and further that there can be no prejudice to the employer where the factual matters raised in this Application will in any case be subject to court proceedings (at the very least in relation to underpayment of wages) regardless of whether the extension of time is granted or not as the Applicant intends to lodge a statement of claim in the Federal Circuit Court in relation to underpayment of wages.

[31] In considering this factor, the employer must produce evidence to demonstrate prejudice. It is then a matter for the applicant to show the facts do not amount to prejudice. 16 The Respondents made no submission in relation to this factor and presented no evidence of any prejudice.

[32] The mere absence of prejudice to the Respondents is an insufficient basis to grant an extension of time. 17 I consider this factor to be neutral.

The merits of the application – s. 366(2)(d)

[33] In Kornicki v Telstra-Network Technology Group 18 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[34] The Applicant claims the Respondent contravened ss. 340 of the Act. Section 340 of the Act states:

“Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note:          This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note:          This subsection is a civil remedy provision (see Part 4-1).”

[35] The Applicant claims that he exercised his workplace right to make a complaint with the First Respondent in relation to his award coverage and his wage. The Applicant submits that because he made this complaint he was dismissed, or alternatively altered his position to his prejudice, or by refusing to employ him. 19

[36] Exercising discretion to allow for an extension of time is essentially an interlocutory matter that does not allow for the merits (through evidence) to be fully tested. There is insufficient material before me to make any detailed assessment of the strength of the Applicant’s case.

[37] Accordingly, I am prepared to consider the merits of the application to be a neutral factor in the present case.

Fairness as between the Applicant and other persons in a like position – s. 366(2)(e)

[38] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 20

[39] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

CONCLUSION

[40] The timeframe that applies to the exercise of a person’s right to bring an application under s. 365 of the Act reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[41] Having regard to all of the matters that I am required to take into account under s. 366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist in this matter. There is no acceptable or reasonable explanation for the delay in filing the application.

[42] While there is dispute as to whether the Applicant was dismissed, the Applicant has made a s.365 application to deal with contraventions involving dismissal. The Applicant appears to accept that his employment ceased at the latest on 27 January 2019. Authority cautions against determining whether or when a dismissal took effect.

[43] If the Respondent considered that a failure to offer shifts to a daily hire casual was a prejudicial alternation of employment, it was open to the Applicant to lodge a s.372 application to deal with contraventions not involving dismissal. This was not done.

[44] None of the factors pursuant to s. 366(2) of the Act particularly weigh in favour of me granting the Applicant an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[45] Pursuant to section 366(2) of the Act, the Applicant’s extension of time request is denied and therefore the application made under s. 365 of the Act is dismissed. I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR716421>

 1   Acts Interpretation Act 1901 (Cth) s.36(2)

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

 3   Halls v McCardle and Ors [2014] FCCA 316

 4   Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [2010] FWA 1394

 5   Nulty v Blue Star Group [2011] FWAFB 975 at [13]

 6   Outline of Applicant’s Submissions in relation to Extension of Time of 10 January 2020 at [36]

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [39]

 8   Ibid

 9   Statement of David Seale at [12]

 10   Ibid at [13]-[14]

 11   Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709

 12   Statement of David Seale at [12]

 13   [2013] FWCFB 6321, 238 IR 42

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 15   Statutory Declaration of Adam Christopher Maley, 24 January 2020

 16   Cowie v State Electricity Commission of Victoria [1964] VR 788

 17   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300

 18   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C

 19   Form F8 of 12 November 2019

 20   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31]