Mr Matt Dain v Commworx Pty Ltd

[2018] FWC 3511

[2018] FWC 3511

FAIR WORK COMMISSION

DECISION

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

Mr Matt Dain
v
Commworx Pty Ltd; Martinus Rail Pty Ltd
(C2018/2260)

COMMISSIONER PLATT ADELAIDE, 19 JUNE 2018

Application to deal with contraventions involving dismissal – extension of time – application dismissed.

Summary

[1] Mr Matt Dain has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Commworx Pty Ltd (Commworx) and Martinus Rail Pty Ltd (Martinus) on 2 January 2018 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 27 April 2018.

[3] Mr Dain’s application identified that it was made beyond the 21 days from the date of dismissal and explained the reasons for delay by reference to an attachment which does not appear to have been submitted with the application.

[4] Commworx filed a form F8A Employer Response on 1 May 2018 which indicated that the employment ceased on 3 January 2018 by way of abandonment of employment, in addition, they raised jurisdictional objections on the basis that the application was lodged out of time and that Mr Dain was not dismissed. This decision only deals with the extension of time issue.

[5] On 11 May 2018 a Form F53 Notice of Representative Commencing to Act was received from Employsure Pty Ltd on behalf of Martinus.

[6] On 18 May 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a Hearing by telephone conference on 12 June 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties who were directed to provide an outline of argument of their respective positions by 28 May 2018.

[7] On 28 May 2018 after receipt of the parties’ submissions, my Associate corresponded with Mr Dain in order to determine if he was seeking to pursue individual claims in respect of Commworx and Martinus (and inviting him to separate the claims if that was the case), or to explain the reasons why the two employer Respondents had been nominated. The matter was not able to be resolved by email, and the matter was listed for a Directions conference.

[8] On 5 June 2018, a Directions conference was conducted by telephone. Mr Dain represented himself, Ms Samantha Henshaw represented Commworx and Ms Pescud of Employsure represented Martinus with permission granted under s.596(2)(a) and (c), with the consent of Mr Dain.

[9] The Directions conference canvassed the naming of the two employers and whether the matters should be separated or heard jointly. Mr Dain did not wish to separate the matters and asserted both employers were involved in his dismissal. It was accepted by Mr Dain that the period of employment in question commenced on or about 6 December 2017 and concluded on 3 January 2018. Mr Dain advised that the details of his employment with Martinus in July 2017 were provided for background purposes only. The parties were invited to provide additional submissions (if any) based on this information.

Submissions

[10] Mr Dain provided voluminous written submissions and a number of documents (much of which went to the merits) which is relevantly summarised as follows:

•  He commenced employment with Commworx on 7 December 2017.

•  He was dismissed for exercising a workplace right namely the making of complaints concerning the requirement to provide safe and secure accommodation whilst working on the Murray Basin Rail Project and other workplace entitlements.

•  Mr Dain’s last day of work with Commworx was on 31 December 2017, he was due to return to work on 2 January 2018 but declined to do as Commworx had failed to provide secure accommodation.

•  Mr Dain first became aware of the concept of a constructive dismissal whilst researching for a mediation in an unrelated matter before the Commission in late April 2018.

•  Upon becoming aware of the concept of a constructive dismissal Mr Dain determined that he had been forced from his employment by Commworx and Martinus and had been dismissed. Mr Dain subsequently lodged this application.

•  Mr Dain submitted that the concept of action taken to dispute the dismissal did not apply in the case of a constructive dismissal.

•  Mr Dain submitted that after he stopped attending work he repeatedly tried to contact his supervisor to ascertain if secure accommodation had been provided. Mr Dain asserted that his claims received no response.

•  Mr Dain submitted that granting the late application would not be significant compared to if it had been lodged within time.

•  Mr Dain submitted that this application had merit.

•  Mr Dain submitted that fairness between himself and other persons in a similar position was not relevant.

[11] Commworx provided a written submission which is relevantly summarised as follows:

•  Mr Dain did not return to work on 3 January 2018.

•  He was considered to have abandoned his employment from 5 January 2018.

•  Mr Dain was not dismissed.

•  Commworx had suffered prejudice in that it was not provided with an opportunity to correct the issue, the project is now complete and many persons who could help with the case have moved on.

[12] Martinus provided written submissions and a statement by Mr Jarred Roker, and various documents concerning Mr Dain’s terms and conditions of employment, which are relevantly summarised as follows:

•  Martinus and Commworx are not related entities within the meaning of s.50AAA of the Corporations Act 2001 (Cth).

•  Mr Dain was directly engaged by Martinus on a project specific basis on 3 July 2017. This employment ceased on 7 July 2017.

•  In so far as the application relates to that matter, it is significantly out of time.

•  Martinus and McConnel Dowell Constructors Pty Ltd entered into a joint venture which engaged Commworx to work on the Murray Basin Rail Project.

•  Martinus did not employ Mr Dain after 7 July 2017 or dismiss him on 3 January 2018. If this is incorrect, and Martinus did employ Mr Dain, the application is significantly out of time and Mr Dain has failed to provide any explanation for the delay.

•  There was no action taken to contest the dismissal.

•  Mr Dain is well versed in filing general protections matters in light of his application against Nugroup Rail Solutions (SYG3457/2017) on 10 November 2017, a Notice of Discontinuance on 12 January 2018 and an application for alternate dispute resolution in SYG3457/2017 which does not relate to Mr Dain.

•  The delay has caused Martinus to suffer prejudice in defending the vexatious and incoherent claim. Further, one of Martinus’ employees who was involved is no longer employed.

•  Martinus contends that fairness between Mr Dain and other persons in a similar situation weighs against the extension of time in light of the 270 day delay (against the July 2017 dismissal).

•  There are no exceptional circumstances that support the extension of time being granted.

[13] A Hearing was conducted by way of telephone conference on 12 June 2018. A sound file record of the telephone conference was kept. Mr Dain represented himself, Ms Henshaw represented Commworx and Ms Ali from Employsure represented Martinus with permission being granted, unopposed, pursuant to s.596 (2)(a) and (c).

[14] Mr Dain reiterated the information contained in his submission and further advised:

•  He was dismissed on 2 January 2018.

•  Upon becoming aware of the notion of constructive dismissal he filed within 7 to 10 days later, the last period being used to determine if he fit the criteria.

•  During the Hearing Mr Dain sought to provide additional material which related to unsuccessful attempts to contact his Commworx’s supervisor. This material was accepted, and in any event, had already been previously supplied to the parties. Mr Dain unsuccessfully sought to provide further material which he described as text messages which he said was sent to his supervisor, and also to a housemate who knew the supervisor which followed up on his claims concerning the failure of Commworx to provide his contractual benefits in the period up to 7 January 2018.

•  A majority of Mr Dain’s oral submission went to the substantive merit of this matter.

[15] Commworx and Martinus reiterated their submissions and contended that the claim had no merit and no exceptional circumstances existed.

Applicable Law

[16] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (2).

(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 like position.”

[17] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can 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 are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

Consideration

[18] It is not necessary for me to determine who the correct employer is given that the relevant period of employment has been identified.

[19] It is also not necessary for me to determine if Mr Dain was dismissed, just the date upon which the employment ceased and when Mr Dain became aware of it. There is some variance between the dates that Mr Dain could have ceased employment – somewhere between 2 and 5 January 2018.

[20] I find that Mr Dain’s employment ceased, and that he was aware of it, on 5 January 2018, whilst this date is later than that proposed by Mr Dain, it is most favourable to his application.

[21] This general protections application was made three months and 1 day outside of the 21 day time limit and therefore can only be pursued if this time limit is extended.

[22] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[23] The sole reason for the delay was put down to Mr Dain’s lack of knowledge of the concept of a constructive dismissal, and his view that the factual circumstances of the cessation of his employment fell within that concept.

[24] Ignorance of the law is not an exceptional circumstance: Rose v BMD Constructions Pty Ltd. 2

[25] Even if ignorance of the law explained the period up to Mr Dain becoming aware of the concept of ‘constructive dismissal,’ Mr Dain delayed lodging his claim for a further 7-10 days.

[26] The delay in this case is considerable and has not been satisfactorily explained by Mr Dain.

[27] Mr Dain has failed to provide a credible explanation forany part of the delay, and this tends to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters. 3

Any action taken by the person to dispute the dismissal

[28] Putting Mr Dain’s case at its highest, and noting that I was not provided with copies of the text messages that he states was sent to Commworx employees, Mr Dain took no action to contest the circumstances of his dismissal after 7 January 2018, other than the lodgement of this application.

Prejudice to the employer (including prejudice caused by the delay)

[29] The delay in the making of this application has resulted in potential witnesses leaving the employ of both Commworx and Martinus. I find that prejudice has resulted and that this weighs against the granting of an extension of time.

The merits of the application

[30] In terms of the merits of the application, the reasons for the dismissal are contested and there is insufficient information before me to make a finding. Accordingly, merits are to be regarded as a neutral consideration.

Fairness as between the person and other persons in a similar position

[31] The delay in this matter is considerable and the consideration of fairness relative to other persons in similar positions weighs against granting the extension of time.

Conclusion

[32] Having considered the matters I have set out above, I am not satisfied that Mr Dain’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, this application will be dismissed. An Order⁴ reflecting this decision will be issued.

COMMISSIONER

Appearances:

M Dain the Applicant.

S Henshaw on behalf of Commworx.

N Ali on behalf of Martinus.

Hearing details:

2018.

Adelaide:

12 June.

Printed by authority of the Commonwealth Government Printer

<PR608146>

1 [2011] FWAFB 975.

 2   [2011] FWA 673.

 3   [2018] FWCFB 901.

4 PR608147.