Mr Makram Louka v Centrelink
[2010] FWA 6827
•1 SEPTEMBER 2010
[2010] FWA 6827 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Makram Louka
v
Centrelink
(C2010/3802)
VICE PRESIDENT LAWLER | MELBOURNE, 1 SEPTEMBER 2010 |
S. 365 - Application to deal with contraventions involving dismissal
[1] This is an application pursuant to s.365 of the Fair Work Act 2009.
[2] Sections 365 and 366 of the FW Act provide:
365 Application for FWA to deal with a dispute
365 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.
366 Time for application
366(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
366(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[3] The respondent has raised jurisdictional objections and has objected to FWA conducting a conciliation in the matter. It filed a response to the application which includes the following.
1. Response to Alleged Contraventions
1.1. Section 368 of the Fair Work Act 2009 (Cth) (the Act) indicates that a conference must be conducted for applications lodged under section 365. However, Note 2 within section 368 indicates that Fair Work Australia (FWA) may deal with the matter by making a recommendation or expressing an opinion. The respondent is of the position that a conference will not resolve this matter given the application is flawed by inherent jurisdictional issues. The respondent invites FWA to express an opinion that the application must fail for want of jurisdiction, and therefore conciliation in this matter is not appropriate.
A. Lack of Jurisdiction – not an employee
1.2. The respondent submits that the applicant was at no time an employee of the respondent.
1.3. The respondent submits that in accordance with the Independent Contractors Act 2006 (Cth) and the multiple indicia tests in determining whether an individual is an employee or a contractor, that the applicant is an independent contractor: Hollis v Vabu Pty Ltd (2001) 207 CLR 21 and Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 121.
1.4. The applicant initially applied to provide contracted interpreter services for the Department of Social Security in May 1990.
1.5. The applicant signed a contract to provide interpreting services for Centrelink as required. This contract stipulated that the applicant was not an employee, could accept or decline work at the applicant’s own initiative and that payment was on a ‘fee-for-service’ basis.
1.6. The respondent notes that the applicant invoiced Centrelink on a regular basis using both an Australian Business Number (ABN), registered trading name and Vendor Number. The respondent subsequently paid these invoices as services rendered.
1.7. The applicant was also contracted through ‘On-Call Interpreters & Translators Agency Pty Ltd’ to provide sessional interpreter services to Centrelink Marrickville Customer Service Centre from early 2008 to 10 October 2008. Again, through this arrangement, the applicant was not an employee of the respondent.
1.8. The respondent submits that given that the applicant was not an employee of the respondent, that the application under section 365 of the Act is misguided.
A. Lack of jurisdiction – delay in lodging application
1.9. In accordance with section 366 of the Act, applications must be made within 60 days of the dismissal taking effect, unless otherwise extended by FWA.
1.10. The respondent submits that to its knowledge, the applicant has not requested and been granted further time for lodging his application, and therefore is out of time for lodging this application.
1.11. The respondent submits that whilst extensions of time to lodge general protections disputes may be granted in accordance with section 366(2) of the Act, the applicant has not provided information that may go towards exceptional circumstances or explain the reason for the delay.
1.12. From the information held by the respondent, the applicant was removed from the respondent’s Register of Interpreters effective 3 November 2008. The respondent provided the applicant with correspondence to this effect on 3 November 2008, 24 November 2008, 6 March 2009, 19 August 2009 and 21 December 2009. The respondent does not concede that removal from the Register amounts to dismissal. However, given that this decision was made and notified to Mr Louka on 3 November 2008 and his application to FWA was not received until 21 May 2010, the Respondent submits that if 3 November 2008 is the date taken to be when the cause of action arose, the applicant is outside the appropriate timeframe for lodging a valid application.
1.13. The last correspondence the respondent sent to the applicant about removal of the applicant’s name from the Register was by way of letter dated 21 December 2009. Should FWA consider the 21 December 2009 letter as when the cause of action arose, the applicant would still be outside the required timeframe for lodging an application.
1.14. The respondent submits that even if FWA was to accept that the applicant was an employee who was dismissed, the applicant is outside the timeframe for lodging an application under section 365 of the Act, and has not provided any evidence to support an extension of time. On this basis, the application must fail.
2. If the application alleges a dismissal, what were the reasons for dismissal?
2.1 The applicant is alleging that he was dismissed due to an incident that occurred on 9 October 2008.
2.2 On 10 October 2008, Centrelink received a complaint from a customer regarding an incident on 9 October 2008 with the applicant and his behaviour towards her, including his obtaining her contact details and contacting her at home.
2.3 As a result of this complaint, Centrelink requested on 10 October 2008 that On Call Interpreters & Translators Agency Pty Ltd not send the applicant to Centrelink premises for future sessional interpreting, as was allowed under the contract.
2.4 The respondent also undertook to investigate the matter. A letter was subsequently sent to the applicant on 14 October 2008, by way of facsimile, notifying the applicant of a concern about his supply of interpreter services. This letter indicated that the respondent would elect not to ask the applicant to supply interpreter services until the matter was finalised.
2.5 On 27 October 2008, the applicant met with the respondent to discuss the complaint regarding the incident on 9 October 2008.
2.6 On 3 November 2008, the respondent sent the applicant a letter advising that in accordance with clause 3.6(d) of the Rules of the Centrelink Register of Interpreters and Translators, the applicant’s name was to be removed from the Register.
2.7 A further letter was sent on 24 November 2008 from the respondent to the applicant advising that from 3 November 2008 the applicant would no longer be contacted by Centrelink in regards to the supply of interpreter services as his name had been removed from the Register of Interpreters and Translators.
2.8 In February, June and November 2009, the respondent received representations from the applicant and Mr Stan Lomas, the applicant’s advocate and Mr Greg Miller, the applicant’s solicitor requesting that the removal of the applicant’s name from the register be reviewed.
2.9 The respondent replied to these representations indicating that its decision to remove the applicant’s name from the register stood.
2.10 The respondent submits that the applicant was not an employee of the respondent and so no dismissal could occur. Even if it were accepted that the applicant was an employee (and this is not the position of the respondent), removal of his name from the register does not constitute ‘dismissal’ for the purposes of the Act.
[4] If the respondent is correct in its factual contentions as to manner in which the applicant came to be working as an interpreter for Centrelink clients then the applicant was not an employee of Centrelink but, rather, was at all times working as a contractor.
[5] On my instructions, my Associate wrote to the applicant in the following terms:
“Dear Mr Louka,
Please find attached a Form F8A response from Centrelink to your application for FWA to deal with a general protections dispute with which you have probably already been served. The position of the Centrelink is set out in the form. In summary, Centrelink objects to FWA’s jurisdiction to deal with your application (including by conducting a conciliation) on the basis that:
• You were never an employee of Centrelink (and therefore could not be “dismissed” within the meaning of s.365 of the Fair Work Act 2009); and
• The application is out of time.
Vice President Lawler has instructed me to vacate the conciliation conference listed for next Monday 28 June 2010. Instead you are required to provide a written reply to Centrelink’s contentions by 4pm on Friday 2 July 2009. Your reply (to which you may attach relevant documentary evidence) needs to address:
• The basis upon which you contend that you were an employee of Centrelink rather than an contractor supplied through On-Call Interpreters & Translators Agency Pty Ltd.
• Why time should be extended for the filing of your application (your response to this aspect should address the matters specified in s.366(2) of the Fair Work Act 2009).
In your reply you should identify any particular facts asserted by Centrelink in its response with which you disagree.
Depending upon the content of your reply his Honour may decide to deal with the matter on the papers and dismiss your application as outside FWA’s jurisdiction or hold a jurisdictional/extension of time hearing (with a conciliation conducted on the same occasion in the event that you are successful in obtaining an extension of time and resisting Centrelink’s jurisdictional objection that you were never an employee of Centrelink).”
[6] The applicant provided a long response which deals mainly with the merits of the events that led to Centrelink deciding that it would no longer accept the provision of interpreting services performed by the applicant. To the extent that it deals with Centrelink’s contentions as to the manner in which the applicant came to be working as an interpreter at Centrelink, far from contesting those factual contentions, the applicant appears to accept that at the time of the incident that caused Centrelink to decide that his services would no longer be used, he was indeed working through On-Call Interpreters & Translators Agency Pty Ltd as an employee of, or contractor to, that company.
[7] I find that the applicant was not an employee of Centrelink but, rather, was an employee of, or a subcontractor to, On-Call Interpreters & Translators Agency Pty Ltd.
[8] However, pursuant to item 3 of s.342, adverse action is taken “by a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor... if the principal:
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor’s prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or agree to supply, goods or services to the independent contractor.”
(underline emphasis added)
[9] My provisional view is that the words of paragraph (d) must be taken to encompass a refusal to make use of services offered by an independent contractor in the form of services provided by that contractor through a particular employee of, or subcontractor to, that contractor. Any other construction would render the words first underlined otiose. My Associate’s letter did not recognise the availability of a remedy for a person who was not an employee of the respondent. Having recognised this apparent mistake on my behalf, I cannot, at this point, accede to Centrelink’s jurisdictional objection based on the contention that the applicant was a contractor rather than an employee of Centrelink. I have not yet given Centrelink an opportunity to be heard on this provisional conclusion and so Centrelink retains the right to press this jurisdictional objection if the occasion arises and I remain open to being persuaded that the view I have expressed is itself wrong. I have not put Centrelink to the trouble and expense of doing that at this stage because I am satisfied that I should uphold Centrelink’s jurisdictional objection based on the application being filed out of time.
[10] There is an issue as to whether a decision by a principal to cease using the services of a particular employee of, or subcontractor to, a contractor to the principal is a “dismissal” within the meaning of s.365 and s.366 (and therefore whether the present application was properly commenced under s.365 or whether it should in fact have been commenced under s.372 1). Usually, the word “dismissal” is used to describe the termination of an employment relationship. However, it is also apt to extend to a decision by a principal to dispense with the services of an employee of, or a subcontractor to, a contractor to the principal. Adopting a purposive approach to the interpretation of s.365 and s.366 in the context of the FW Act as a whole and, in particular, considering the alternatives constituted by s.365 and s.372, in my opinion the word “dismissal” should be given that broader construction. It would be curious indeed if an employee of the principal was subject to the constraint in s.362 but an employee of, or subcontractor to, a contractor to the principal was not subject to the same constraint when complaining of adverse action by that principal of the sort referred to in item 3 of s.342, being action that is closely analogous to the “dismissal” of an employee of the principal.
[11] Accordingly, I proceed on the basis that the originating application in this matter was properly filed under s.365 rather than s.372 and that s.366 applies in relation to the originating application.
[12] The criteria in s.366(2) are reminiscent of the criteria addressed by Marshall J in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 at 299-300. His Honour stated that:
“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 of the delay which makes it equitable to so 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 of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
[13] In my view, Marshall J’s list, and in particular item 1 of that list, provide a proper elucidation of how a proper exercise of discretion based on the factors listed in s.366 should be approached.
[14] The applicant, in his response to my Associate’s letter, did not provide anything approaching a satisfactory explanation for the delay of about one and half years in the filing of the application. It is clear that the applicant contested the “dismissal”. I have assumed against the respondent that there is no particular prejudice to the respondent beyond the usual prejudice of fading memories associated with any delay. In a case like this, where the underlying merits are clearly contested, the tribunal will not embark on a fact finding exercise to determine the merits for the purposes of deciding whether there should be an extension of time. Accordingly the factor in s.366(2)(d) does not count against the applicant. There is no relevant issue of fairness as between the applicant and other persons in a like position: even on the applicant’s version, the incident in question did not involve any other employee of, or subcontractor to, On-Call Interpreters & Translators Agency Pty Ltd.
[15] While special circumstances are not necessary, I must be positively satisfied that time should be extended. The prima facie position is that the time limit in s.366(1) should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. The period of delay in this case is very substantial and there is no acceptable explanation for that long period of delay such as to make it equitable to extend time. In the exercise of my discretion I decline to extend time and, accordingly, the application is dismissed.
VICE PRESIDENT
1 Not that this would form a proper basis for dismissing the application: if the application was incorrectly commenced under s.365 and should have been commenced under s.372 it is hard to see how an application to amend so that reliance on s.372 could properly be refused in the case of an unrepresented applicant such as Mr Louka.
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