Mr Garry Keith Druett v Chandler Macleod Group Limited
[2010] FWA 6187
•18 AUGUST 2010
[2010] FWA 6187 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Garry Keith Druett
v
Chandler Macleod Group Limited
(U2010/8055)
COMMISSIONER THATCHER | CANBERRA 18 AUGUST 2010 |
Jurisdiction - respondent not employer
[1] On 16 April 2010, Garry Keith Druett made application to Fair Work Australia (FWA) for an unfair dismissal remedy on the grounds that the termination of his employment by the Chandler Macleod Group Limited was harsh unjust or unreasonable.
[2] Whilst the application is also against another unrelated employer, 1 the current proceedings are only in relation to the action against the Chandler Macleod Group Limited.
[3] Chandler Macleod Group Limited lodged a jurisdictional objection on the basis that it has never been the employer of Mr Druett.
[4] The form on which Mr Druitt lodged his application stated a date of termination of employment of 9 April 2010. However during the hearing Mr Druett made alternative submissions in respect of the dates of his purported termination of employment, namely:
(a) On or around the week ending 10 October 2005 - the date he last worked for Forstaff Australia Pty Limited (Forstaff), a labour hire company; or
(b) 9 April 2010 - based on the contention that although he had not worked since October 2005 for Forstaff or a related company of the Chandler Macleod Group Limited he had remained an employee. 2 It seemed that he considered that in April 2010 he accepted its purported repudiation of the contract of employment.3
[5] Insofar as the application relates to a purported date of termination in October 2005, the application is made to FWA pursuant to s.643 of the Workplace Relations Act 1996 (the former Act) 4
[6] Insofar as the application relates to a purported date of termination of 9 April 2010, the application is made to FWA pursuant to s.394 of the Fair Work Act 2009 (the Act).
[7] In respect of the submission that Mr Druitt’s employment was terminated in October 2005, given that the application has been made approximately 4½ years outside the 21 days prescribed in s.643(14) of the Workplace Relations Act 1996, I requested the parties to address me on whether or not an extension for time for the lodgement of the application should be granted. Chandler Macleod Group Limited submitted that such an extension of time not be granted.
[8] Insofar as an extension of time for lodging the application is relevant to these proceedings, FWA is required to consider the granting of an extension of time before considering the jurisdictional objection. If an extension of time is not granted, there is no longer an application for the tribunal to consider.
EXTENSION OF TIME
[9] The granting of an extension of time for lodging an application is an exercise of FWA’s discretion. The Note beneath s.643(15) of the former Act is used as a guide to the exercise of the discretion under s.643(14). 5 The Note states:
“In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
[10] The principles set out by Marshall J in Brodie-Hanns v MTV Publishing Ltd (Brodie-Hanns) are:
“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration(s) of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[11] A Full Bench of the Australian Industrial Relations Commission (Commission) in Carlito Cruz v Australia Post Corporation 6 commented in relation to these principles:
“[23] Principle 4 is not a separate criterion: it is in the nature of a commentary on principle 3. Principle 1 should not be seen as a criterion to be assessed independently of the matters in principles 2, 3 5 and 6. Rather, principle 1 is a summary of how the discretion to extend time should be approached and specifies, as it were, an overarching test, namely that prima facie time should not be extended unless there is, having regard to all the circumstances of the case, ‘an acceptable explanation which makes it equitable to [extend time]’. Principles 2, 3, 5 and 6 identify factors that bear upon an assessment of whether a given explanation for delay is sufficiently adequate, in all the circumstances, to make (sic) it ‘equitable’ to extend time. In this context the word ‘equitable’ connotes fairness and is concerned with fairness as between the applicant and respondent - in the language of the WR Act, ‘a fair go all round’.”
[12] An applicant has the positive burden of satisfying FWA that the justice of his or her case requires an extension.
Explanation for the delay
[13] Mr Druett gave no real explanation for the delay in bringing his current application. However it is clear from Mr Druett’s written submissions that since 2005 he has been busy representing himself in numerous applications to various courts/tribunals. These have included the following:
Date lodged | Tribunal | Matter name | Matter type | Decision |
3-8-05 | Industrial Relations Commission of NSW | Garry Keith Druitt and Coles Myer and Others (IRC05/4010) | s.84 unfair dismissal application | Decision of Sams DP, 3 March 2006 [2006] NSWIRComm 62 |
3-8-05 | Industrial Relations Commission of NSW | Garry Keith Druitt and Dept of Education and Training, RTA, Centrelink, Corrective Services & Dept of Housing (IRC05/4012) | s.84 unfair dismissal application | Decision of Sams DP, 28 March 2006, unreported |
26-7-06 | Industrial Relations Commission of NSW | Garry Keith Druitt and Chandler MacLeod (IRC06/2817) | s.84 unfair dismissal application | Determination of proceedings - Murphy C, 3 November 2006. Applicant discontinued proceedings. |
Not available | Administrative Appeals Tribunal | Druett and No Respondent (N2006/1219) | Application for a review of various decisions, including certain actions of Forstaff | Decision of Senior Member N Isenberg [2006] AATA 1043 (4 December 2006) |
3-11-06 | Commission | Garry Druett v Forstaff Australia Pty Ltd (U2006/6552) | s.643 - Harsh, unjust or unreasonable termination | Decision of Roberts C, PR976450, 14 May 2007 |
Not available | Federal Court of Australia | Druett v Administrative Appeals Tribunal (NSD 7 of 2007) | Appeal against decision of 4 December 2006 | Decision of Conti J, [2007] FCA 475 (30 March 2007) |
28-5-07 | Commission | Garry Druett v Forstaff Australia Pty Ltd Druett, (C2007/2775) | Appeal against Commission’s decision in U2006/6552 | Decision of Full Bench, PR977381, 27 June 2007 |
Not available | Federal Court of Australia | Druett v Department of Families, Community Services & Indigenous Affairs (NSD 751 of 2007) | Appeal against decision of Conti J in [2007] FCA 475 | Decision of Bennett J, [2007] FCA 995 (3 July 2007) |
28-6-07 | Commission | Garry Keith Druett v New Home Group, Westpoint Pty Ltd & Ors (U2007/4842) | s.643 - Harsh, unjust or unreasonable termination | Decision of Lawler VP, PR978496, 19 September 2007 |
28-6-07 | Commission | Garry Keith Druett v State Rail Authority of NSW (U2007/4843) | s.643 - Harsh, unjust or unreasonable termination | Decision of Lawler VP, PR978496, 19 September 2007 |
28-6-07 | Commission | Garry Keith Druett v Coles Myer, Forstaff Australia & Ors (U2007/4844) | s.643 - Harsh, unjust or unreasonable termination | Decision of Lawler VP, PR978496, 19 September 2007 |
28-6-07 | Commission | Garry Keith Druett v Commonwealth Employment Services, Department of Social Security & Ors (U2007/4845) | s.643 - Harsh, unjust or unreasonable termination | Decision of Lawler VP, PR978496, 19 September 2007 |
5-7-07 | Commission | Garry Keith Druett v State of NSW, Department of Corrective Services, FACSIA & Ors (U2007/4841) | s.643 - Harsh, unjust or unreasonable termination | Decision of Lawler VP, PR978496, 19 September 2007 |
16-1-08 | Commission | Garry Keith Druett v Rail Corporation New South Wales (RailCorp) (U2007/2232) | s.643 - Harsh, unjust or unreasonable termination | Decision of Cartwright SDP, PR981573, 28 April 2008 |
5-5-08 | Commission | G Druett v Rail Corporation New South Wales (C2008/2458) | Appeal against decision of Commission’s decision in U2008/2232 | Decision of Full Bench, [2008] AIRCFB 599, 20 August 2008 |
2-9-08 | Commission | Druett, Garry Keith v The Smith’s Snackfood Company Limited (U2008/6051) | s.643 - Harsh, unjust or unreasonable termination | Decision of Harrison C, [2008] AIRC 884, 14 November 2008 |
8-9-08 | Commission | Pepsico/The Smith’s Snackfood Company and Chandler Macleod (DR2008/1569) | s.709 - Dispute resolution process | Commission records indicate that application did not proceed as a consequence of Harrison C’s decision in U2008/6051 |
Not available | Workers Compensation Commission of New South Wales - Arbitrator | Not available | Claim for compensation | Decision of Arbitrator on 17 December 2008 |
Not available | Workers Compensation Commission of New South Wales - Presidential | Druett V The Smiths Snack Food Company Ltd | Appeal against decision of Arbitrator on 17 December 2008 | Decision of President dated 3 April 2009 [2009] NSWWCCPD 39 |
Not available | Federal Court of Australia | Druett v Department of Families, Community Services & Indigenous Affairs (No 2) (NSD 751 of 2007) | An application for certain costs | Decision of Bennett J [2009] FCA 898 (11 August 2009) |
[14] It will be noted that the above applications include an unfair dismissal application by Mr Druett made on 26 July 2006 to the Industrial Relations Commission of NSW pursuant to s.84 of the Industrial Relations Act 1996 (NSW) against Chandler Macleod and that on 3 November 2006 Mr Druett discontinued the proceedings.
[15] Mr Druitt gave no explanation for why there was a delay of almost 3½ years after he discontinued the s.84 proceedings against Chandler Macleod before he made the current claim.
[16] Further, the above applications include an application dated 8 September 2008 to the Commission under s.709 of the former Act against Chandler Macleod.
[17] Mr Druitt gave no explanation for why there was a delay of approximately 1 year 5 months after the s.709 proceedings against Chandler Macleod were finalised before he made the current claim.
Merits of the application
[18] In extension of time proceedings, FWA must, without undertaking an in-depth analysis of the merits of the application, endeavour to make some assessment of the merits of such application. In Kyvelos v Champion Socks Pty Limited 7 the Full Bench stated:
“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement. …
It should be emphasised that in considering the merits FWA is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice ...” 8
[19] From the material before FWA it seemed that Mr Druett’s grievance is more about his feeling that he has been ‘discriminated against/treated badly’ 9 because:
(a) After he accepted direct employment with Smith’s, Forstaff offered him no further work, notwithstanding the reported assertion of the in-house lawyer before Sams DP on 14 February 2006 that “Mr Druett ... continues to be employed as an employee of Forstaff”; 10
(b) Forstaff had recorded incorrectly that he had accepted permanent employment with Smith’s 11 when, in fact, it was fulltime casual employment. As a consequence, Forstaff did not give him further work.12 Mr Druett considers that Forstaff should have admitted its mistake and he should have been able to undertake casual work for both Forstaff and Smith’s;13
(c) He perceives (although there was no indication of supporting evidence) that Forstaff may have been somehow responsible for his not being offered permanent employment with Smith’s. 14 All he ever wanted was a permanent job;15
(d) He perceives he has been discriminated against, in part because of a conflict of interest regarding his son’s injuries. 16
[20] In considering the merits of the application I have also taken into consideration my finding (below) in respect of FWA’s jurisdiction to hear and determine the current application.
Other Considerations
[21] Whilst Mr Druitt’s written submissions referred to numerous proceedings in various courts and tribunals (including the High Court) prior to October 2005 in which he was involved, they are not materially relevant to the current application.
Conclusion
[22] Subsection 643(14) is a substantive legislative provision which represents the legislature’s judgement that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of the period may often result in a good cause of action being defeated. In s.643(14) the limitation period is a relatively short one of 21 days, underlining the legislature's intention that applications under s.643(1) are dealt with expeditiously. 17
[23] Having considered the guidance in the principles in Brodie-Hanns, having had regard to s.643(14) within the scope and purpose of the former Act as a whole, and having taken all of the circumstances of the case into consideration, on balance, I am not satisfied that Mr Druett has provided an acceptable explanation for the delay in the lodgement of his substantive application which would make it equitable to extend the time period allowed by the former Act.
[24] Therefore, insofar as it is relevant to the current application I have decided not to extend the time for lodgement of Mr Duett’s application pursuant to s.643 of the former Act. FWA does not accept that portion of the application, which is dismissed.
JURISDICTIONAL OBJECTION
[25] In relation to the jurisdictional objection, the evidence was that:
(a) On 19 November 2002 Mr Druett entered into a contract for casual employment with Forstaff, a labour hire company;18
(b) Subsequently, Mr Druett was placed with a number of Forstaff’s clients,19 including Smith’s Snackfood Company (Smith’s);
(c) In May 2005 there was a merger of Chandler Macleod Group Limited and Forstaff, 20 with the Chandler Macleod Group Limited first becoming a related body corporate of Forstaff. 21 Chandler Macleod Group Limited is characterised as the parent company of Forstaff;22
(d) Mr Druett was last offered work by Forstaff in the week ending 10 October 2005, when he accepted direct employment with Smith’s;
(e) The last pay slips that Mr Druett received when working for Forstaff were from the Chandler Macleod Group Limited; 23
(f) At the time the Chandler Macleod Group Limited processed the pays of all employees of its related body corporate, including casuals who were employed by its labour hire subsidiaries;24
(g) Since October 2005, Mr Druett has not worked for the Chandler Macleod Group Limited or any of its related bodies corporate. 25
[26] Mr Druett’s 2007 unfair dismissal application against Forstaff was based on a date of termination of employment of 24 July 2006 which was in connection with his job at Smith’s. That application was dismissed on the basis that the Commission had no jurisdiction to determine the matter because there was no termination of employment at the initiative of Forstaff. Rather it was found that Mr Druett had abandoned his employment with Forstaff when he accepted full-time casual employment with Smith’s. Further, an extension of time for the lodgement of the application was refused.26
[27] Unfair dismissal applications relate to the termination of employment by an employer of its employee. Mr Druett seems to understand this prerequisite and appears to base his opposition to the jurisdictional objection on the grounds that the Chandler Macleod Group Limited had been his employer because:
(a) Its name was on his last pay slips in October 2005;
(b) The Chandler Macleod Group Limited’s in-house lawyer handled the opposition to Mr Druett’s applications;
(c) In relation to proceedings before the Industrial Relations Commission of NSW which were heard on 14 February 2006, in a decision dated 3 March 2006 Sams DP stated that the in-house lawyer had identified as a ground for challenging any future unfair dismissal proceedings: ‘Mr Druett ... continues to be employed as an employee of Forstaff’; 27
(d) The Chandler Macleod Group Limited was building an empire and as the parent company had some control over Forstaff;28
(e) When the Forstaff blue collar labour hire was rebranded as Ready Workforce, ‘it may have been the case’ that the Chandler Macleod Group Limited wanted to get rid of the long-term casuals. 29
[28] In relation to subparagraph 27(a), it is not unusual for payroll agencies to have their names on payslips, notwithstanding that the employee is employed by another company.
[29] In relation to subparagraph 27(b), the use by a company of the in-house legal advice/representation of its parent company is, to my knowledge, also not unusual.
[30] In relation to subparagraph 27(c), in Garry Druett v Forstaff Australia Pty Limited30the Full Bench found that the in-house lawyer’s assertion was incorrect. I accept that finding, particularly given the decision was not the subject of appeal.
[31] In relation to subparagraph 27(d), the fact remains that the Chandler Macleod Group Limited and Forstaff were different legal entities. There was no evidence that Mr Duett had been offered employment by, or accepted employment with, the Chandler Macleod Group Limited. That is, no contract of employment existed between Mr Druett and Chandler Macleod Group Limited.
[32] Further its legal representative in these proceedings submitted that at no point in time was there a transfer of employment of Mr Druett to the Chandler Macleod Group Limited 31 and there was nothing in the proceedings which would lead me to make a contrary finding.
[33] There was no evidence to support subparagraph 27(e) which appears to be without foundation.
[34] Clearly Mr Druett had been an employee of Forstaff. However on the evidence before me I find that he was not an employee of the Chandler Macleod Group Limited, whether solely or in some joint employment arrangement with Forstaff.
[35] There is nothing in the legislation that enables claims that an employer had unfairly dismissed an employee to be made against the parent company of that employer.
[36] The finding that Mr Druett was not an employee of the Chandler Macleod Group Limited is a fatal blow to the application (even if, if necessary, an extension of time for lodgement had been granted) and obliges me to conclude that FWA has no jurisdiction to determine the application.
[37] Insofar as the application does not require an extension of time, it is dismissed because of want of jurisdiction as Chandler Macleod Group Limited was not Mr Druett’s employer.
[38] The file will be referred for the processing of Mr Druett’s other application for an unfair dismissal remedy against the other employer in relation to the purported termination of his employment in April 2010.
COMMISSIONER
Appearances:
Mr G Druett, on his own behalf
Ms J Fisher, Solicitor for the respondent
Hearing details:
2010
Sydney
August 6
1 PN236.
2 Subsequent to 2005 Ready Workforce became the blue collar labour hire brand of a rebranded Forstaff - PN432.
3 PN175.
4 Fair Work (Transitional Provisions & Consequential Amendments) Act 2009, Schedule 2, Items 11 & 12. Although Rule 24 of the Fair Work Australia Rules 2009 provides that: “Any application that could have been made under the WR Act and that may be made to FWA by virtue of a provision of the Transitional Act or any other Act or regulation may be made in accordance with the Australian Industrial Relations Commission Rules 2007 using such form as is specified in those rules, save that the form should be varied to identify that the application is made to FWA and identify the provision(s) that authorise the making of such application”, the Chandler Macleod Group Limited did not take issue with the form used by Mr Druett to lodge his application.
5 Decision of the Full Bench in Lee Jarrard Jervis v Coffey Engineering Group Pty Ltd, PR 927201, 3 February 2003, per Marsh SDP, Duncan SDP and Harrison C, at paragraph 14; and decision of the Full Bench in Peter James Schumac v Commonwealth of Australia, PR935082, 22 July 2003, per Munro J, Cartwright SDP and Cargill C, at paragraph 4. Those decisions referred to a similar provision in relation to s.170CE(7) of the Workplace Relations Act 1996 as in force prior to the coming into operation of the Workplace Relations Amendment (Work Choices) Act 2005.
6 [2008] AIRCFB 452, 30 May 2008, per Lawler VP, Richards SDP and Redmond C.
7 Print T2421, 10 November 2000 per Giudice J, Acton SDP and Gay C.
8 At para 14.
9 PN311 & PN532.
10 PN179 & PN488. The case involved was Garry Keith Druett and Coles Myer and Others, [2006] NSWIRComm 62, para 11.
11 PN328 & PN333.
12 PN407, PN427 & PN488.
13 PN558.
14 PN132 & PN333.
15 PN411.
16 Paragraph 8 of Mr Druett’s written submissions dated 28 July 2010.
17 Refer to decision of the High Court in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, 551-554 per McHugh J.
18 Exhibit F1, Attachment A.
19 Exhibit F1, paragraph 5.
20 PN280 and PN287.
21 PN287.
22 PN628.
23 PN303 and PN342-PN343.
24 PN359. Also uncontested submission from the bar table at PN393.
25 PN193.
26 G K Druett v Forstaff Australia Pty Limited, PR976450, 14 May 2007, per Roberts C and Garry Druett v Forstaff Australia Pty Limited, PR977381, 27 June 2007, per Lawler VP, Ives DP, Smith C.
27 Garry Keith Druett and Coles Myer and Others, op cit.
28 PN446, PN466 & PN484.
29 PN451.
30 Ibid.
31 PN287 & PN620.
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