Mr Robert Finney v The Trustee for Junedale Family Trust T/A Junedale Family Trust

[2018] FWC 6080

[2018] FWC 6080

FAIR WORK COMMISSION

DECISION

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

Mr Robert Finney
v
The Trustee for Junedale Family Trust T/A Junedale Family Trust
(C2018/3916)

COMMISSIONER SIMPSON BRISBANE, 27 SEPTEMBER 2018

Application to deal with contraventions involving dismissal.

[1] On 27 September 2018, I conducted a hearing to determine whether to extend time in matter number C2018/3916. At the conclusion of the hearing, I issued a brief oral decision refusing the application and dismissing the application, and undertook to provide more fulsome written reasons at a later time. These are those reasons.

[2] This application concerns an application made in accordance with s.365 of the Fair Work Act 2009 (the Act) by Mr Robert Finney (the Applicant) who alleges his employment was terminated by The Trustee of Junedale Family Trust t/a Junedale Family Trust (the Respondent) in contravention of the general protections provisions of the Act. The Respondent denies the allegations.

[3] The Applicant stated in his application that he commenced employment with the Respondent on 7 November 2011, until his dismissal on 18 May 2018. The Applicant’s general protections application was lodged on 17 July 2018. The last day on which the application could have been filed within time was Friday 8 June 2018. Therefore, the application was made 39 days outside the 21 day period prescribed by the Act.

[4] The application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission). The Respondent did not consent to the application proceeding to a conference and on that basis the matter was listed for a hearing of the extension of time argument on 27 September 2018.

[5] The Act provides that a person who has been dismissed and applies to the Commission for it to deal with a general protections application pursuant to s.365 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.

[6] Section 366 of the Act provides:

“Section 366 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.”

Submissions

[7] The “Form F8 – Application” from the Applicant at Part 1.4 of the Application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” The Applicant marked “No” in response to this question. The reason for the delay provided on the Form F8 was as follows:

“Communication with Fair Work Ombudsman

23 April 2018 – initial communication with Ombudsman re pay/wages

24 April 2018 – response received

19 May 2018 – second communication re dismissal

21 May 2018 – response received

6 June 2018 – third communication re award coverage

7 June 2018 – advised to seek independent legal advice to determine if I was an employee or independent contractor

I then attempted to get an appointment with the Suncoast Community Legal Service but my appointment was postponed by the Service until 25 June 2018.

The Service recommended I make an application to the Commission using the F8 “General protections application involving dismissal” for sham contracting purposes and recovery of wages and superannuation.

My application was further delayed when my father was taken to hospital with respiratory problems.”

[8] Both parties were sent correspondence by the Commission on 10 September 2018 advising that they were required to complete an outline of argument concerning the extension of time hearing by no later than 5pm on Monday 17 September 2018. Both parties provided a brief submission.

The Reason for the Delay – s 366(2)(a)

[9] Further to the reasons provided with the originating application, the Applicant provided some background to discussions he had with other cleaners from another complex in February/March 2018 to the effect that he should be being paid under the Cleaning Services Award 2010.

[10] He submitted that he approached a Senior Industrial Inspector from the Department of Justice and Attorney General, Queensland who advised him that he should contact the Fair Work Tribunal. The Applicant clarified at the hearing on 27 September 2018 that his references to the Fair Work Tribunal were in fact references to the Fair Work Ombudsman (FWO).

[11] The Applicant submitted that prior to his dismissal he had started communicating with the FWO about his concern that he was being paid correctly. He said that on 23 April 2018, 19 May 2018 and 6 June 2018, he had such communications and on the later two occasions mentioned that he had been dismissed. He said that the FWO did not advise him of a 21 day time limit but advised him to obtain independent legal advice. The Applicant said that on 7 or 8 June 2018, he contacted the Suncoast Community Legal Service and initially had an appointment on 18 June 2018 which was subsequently moved to 25 June 2018.

[12] The Applicant said that it was in the course of this meeting with Suncoast Community Legal Service that he was advised he could submit a Form F8 application to the FWC and this meeting was also the first time he was advised of a 21 day time limit.

[13] The Applicant said that he submitted the Form F8 on 17 July 2018 but due to technical difficulties the form did not go through and he resubmitted it on 19 July 2018. I advised the Applicant at the hearing that the FWC file records the application as having been received on 17 July 2018 and I accepted that the application was filed as of that date. However, I asked the Applicant to explain the delay between 25 June 2018 when he became aware that the application was out of time, and his not filing the application until another 22 days later on 17 July 2018.

[14] The Applicant provided some clarification concerning the submission about his father having been hospitalised in this time as not being a reason he relied upon to explain the delay. He submitted his poor computing skills as an explanation for this further delay.

[15] The Respondent submitted that the Applicant had not provided an adequate explanation for the delay.

[16] I have considered the submissions on the reason given for the delay and I am not satisfied and that they weigh in favour of extending time.

Action taken to dispute the Dismissal – s 366(2)(b)

[17] The Applicant relies upon his attempts to gather information and to communicate with a State Industrial Inspector, FWO and then the community legal service to demonstrate that he had taken action to dispute the dismissal. It was not readily apparent to me, at least until the Applicant claimed at the hearing itself, that his consultations described above were in fact about the dismissal, but rather appeared to be about his wishing to agitate his case that he was an employee and not an independent contractor.

[18] The Respondent claims that at the time of termination the Applicant was wished well and the Applicant did not raise any grievances at the time. The Applicant accepted this but described himself as being in a state of shock at the time.

[19] For completeness, because the application itself did not make the point clear, I queried the Applicant at the commencement of the hearing about whether his application did in fact include an allegation that the dismissal itself involved adverse action. He submitted that this was the case, as he maintained that the Respondent was aware he had been making enquiries about the matter before his dismissal. Despite this point not having been made clear at an earlier time, I was satisfied that the application did involve an allegation that the dismissal itself involved a contravention, and that the application was not a s.372 application mischaracterised as a s.365 application. This was an important issue because, had that been the case, the hearing itself would have been unnecessary as no extension of time would be required.

[20] Having considered the submissions, it is apparent that the Applicant had taken steps to pursue his dispute and this favours extending time.

Prejudice to the Employer – s 366(2)(c)

[21] The Applicant submitted that there would be no prejudice to the employer if an extension of time were granted.

[22] Particularly in circumstances where the Respondent has advised that the business has been sold and the entity no longer exists, the Respondent also advised he is now based in Townsville and any participation in proceedings would place a greater burden on him in the circumstances. I am satisfied, given the Respondent’s changed circumstances, that the delay of 39 days would cause some prejudice to the employer and this tells against granting an extension.

Merits of the Application – s 366(2)(d)

[23] The Applicant, being self-represented, did not effectively articulate in his application or submissions a causal connection between the adverse action and the reason it was claimed to be unlawful. In relation to his claim that he was improperly characterised as an independent contractor, I explained the tests in s.357. He did not provide any prima face case to make it arguable that the Respondent was aware of his enquiries to the FWO. It is common knowledge that contract cleaners are, with some regularity, purportedly engaged as independent contractors when in fact they are employees.

[24] There are factual disputes that would need to be explored further before reaching a clear view on the prospects of the case. I am satisfied that it is appropriate to regard the consideration under s 266(2)(d) as a neutral matter.

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

[25] There were no submissions to the effect that s.366(2)(e) was a relevant consideration to the case.

Conclusion

[26] I have taken into account each of the matters that I am required to under s.366(2) and am satisfied that there are not exceptional circumstances justifying the extension of time and on that basis refuse the application. The application is dismissed.

COMMISSIONER

Appearances:

Mr R Finney, with Ms M Finney, appearing on his own behalf

Mr B Langley for the Respondent

Hearing details:

2018,

Brisbane:

September 27

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