Mr Rodrick Fraser v YEM Technology Pty Ltd

[2025] FWC 2347

[2025] FWC 2347

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Rodrick Fraser
v

YEM Technology Pty Ltd

(C2025/3856)

COMMISSIONER RIORDAN SYDNEY, 25 AUGUST 2025

Application to deal with contraventions involving dismissal – jurisdictional objections

1. On 12 May 2025, Mr Rodrick Fraser (the Applicant) filed a general protections application involving dismissal (the Application) to the Fair Work Commission (the Commission), alleging that he was dismissed by YEM Technology Pty Ltd (the Respondent) on 19 February 2025 in contravention of various provisions of Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act).

1. In its Form F8A – Response to a general protections application involving dismissal, the Respondent raised jurisdictional objections on the grounds that the Applicant was not an employee of the Respondent, and that the application was filed outside the 21-day statutory timeframe. In addition, the Respondent raised a further jurisdictional objection in their submissions in relation to the Applicant ‘double dipping’ and making multiple applications in breach of s.725 of the FW Act.

1. Section 366 of the FW Act relevantly provides:

“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.”

1. If the Applicant was dismissed on 19 February 2025, then his application was filed some 2 months and 3 days outside of the statutory timeframe.

1. I am therefore required to determine:

1. Whether the Applicant was an employee of the Respondent;

2. Whether the Applicant has made multiple applications in breach of s.725 of the FW Act; and

3. Whether an extension of time should be granted under s.366(2) of the FW Act for the Applicant to lodge his application.

1. This decision determines the jurisdictional objections only. I have taken liberty to deal with each jurisdictional objection separately.

Was the Applicant an Employee of the Respondent?

Parties’ Submissions

1. The Respondent has denied that the Applicant was its employee. 

1. The Respondent submitted that the Applicant was engaged by Gyron Holdings Pty Ltd, trading as Combined Weld (Combined Weld), in October 2023, in the role of Boilermaker. The Respondent submitted that Combined Weld is a labour hire provider who provides personnel to the Respondent.

1. The Respondent submitted that the Applicant worked at the Sino Iron Magnetite Project in the north-west of Western Australia. The Sino Iron Magnetite Project is operated by Citic Pacific Mining.

1. The Respondent submitted that on 4 February 2025, the Respondent’s Mechanical Supervisor notified the Respondent’s human resources department that the decision had been made to demobilise the Applicant due to the number of crew exceeding site limits.

1. The Respondent submitted that on 12 February 2025, its Human Resources Manager, Ms Suzanne Pel, notified Combined Weld’s Human Resources Administrator, Clarissa Chen that due to excessive crew on site, the Applicant was to be demobilised. The Respondent submitted that the demobilisation took effect from 12 February 2025.

1. The Respondent submitted that as it was not the Applicant’s employer, it could not ‘dismiss’ him from employment, nor did it have any authority or influence over matters such as leave requests, as referred to by the Applicant.

1. The Respondent submitted that any suggestion it engaged in adverse action against the Applicant because he exercised, or purported to exercise a workplace right (for example; by making a complaint or inquiry or by virtue of his family responsibilities) is one that has been manufactured by the Applicant after the fact, in the absence of any evidence to substantiate such a claim.

1. In response to these submissions, the Applicant referred to a letter of March 2025, in which he claimed that Combined Weld stated:

“Combined Weld Pty Ltd is not the employer of Mr Rodrick Fraser in relation to his duties performed at the Sino Magnetite Iron Ore Mine site. At all relevant times, operational supervision, rostering, site access, and disciplinary control were exclusively the responsibility of YEM Technology Pty Ltd.”  

1. I sought a copy of the ‘March 2025’ letter that the Applicant sought to rely on, further to which the Applicant filed a 12 March 2025 email from Combined Weld to the Commission which stated:

“• Firstly, we are a labour Hire Agency located in Henderson WA. Our business nature is, once we have received job request from clients, we will recruit suitable labour to supply to them, and the job length can vary from 1- 2 weeks to 1-2 years. In this case, YEM Technology Pty Ltd is one of our clients, we recruit different labour for their project in Sino mine site, Rodrick Fraser was one of them.

• Secondly, Rodrick start working at Sino mine site from late 2023, he was one of our subcontractors and not a direct employee.

• Thirdly, I just learned that Rodrick was not required to return to site from the HR manager of YEM Technology in mid Feb and I have then informed Rodrick about YEM’s decision.

• Fourthly, Rodrick called me from overseas after I informed him, then I realised he had arguments with YEM Technology and I was not aware of the situation at all before this call.

Therefore, because of the above, I do not think that our company, Combined Weld, should be the Respondent for this case as we did not involve in the arguments between Rodrick and YEM Technology.”

1. The Applicant filed two further emails from Combined Weld as follows:

Feb 19

“Hi Rodrick,

Please be advised, Sino has met their manning numbers and do not require you to return to work at site.

If future work opportunities arise, I will let you know.

Kind Regards,

Clarissa Chen
HR Administrator
Combined Weld”

April 10, email titled ‘Subcontractor period’

“To whom it may concern,

We are a Labour Hire Agency, Rodrick Fraser is one of our subcontractors. We recruited him to work for YEM Technology Pty Ltd from late 2023, the last day he worked was on 12 Feb. 2025. We were not informed about the exact reason of him stop working.

Should you have any further queries, please let me know.

Clarissa Chen
HR Administrator

Combined Weld”

(My emphasis)

1. The Applicant submitted that he was employed as a boilermaker in a ‘FIFO’ capacity, “via Combined Weld Pty Ltd, who subcontracted [him] to YEM Technology at the Sino Iron Ore Project.”

1. The Applicant submitted that he was confused as to who was his actual employer. The Applicant was paid by Combined Weld through his business RJ Welding. It is not in dispute that Combined Weld did not pay superannuation, annual leave, sick leave or paternity leave to the Applicant nor did it deduct any PAYE taxation on behalf of the Applicant. The Applicant admitted that he is required to lodge quarterly BAS statements but that he has failed to do so for a period.

1. It is noted that the Applicant originally filed a s.394 unfair dismissal application against Combined Weld on 3 March 2025. The Applicant has submitted that in that matter, Combined Weld stated that it was not his employer. The Applicant submitted that this denial by Combined Weld created a “legal grey area” and caused him confusion as to who was actually responsible for his dismissal. However, I am satisfied that Combined Weld may have been of the view that the Applicant was not their employee because he was engaged and paid as a subcontractor. Whether that belief was accurate, is not a matter that I need to determine.

1. I am aware that the Applicant settled his unfair dismissal application prior to lodging this general protections application. It would be illogical for the Applicant to be able to claim that he had two employers.

Conclusion

1. I am satisfied and find that the Applicant was not an employee of the Respondent. He was a subcontractor of Combined Weld, enjoyed the taxation benefits of being a subcontractor of Combined Weld, and has simply lodged this application after his unfair dismissal application was settled, in an attempt to maximise any financial settlement.

Has the Applicant made multiple applications in breach of section 725 of the FW Act?

1. In its submissions, the Respondent submitted that, in light of the Applicant’s initial unfair dismissal claim, the Applicant is prohibited from proceeding with his current s.365 claim due to s.725 of the FW Act which states:

“General Rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies”.

1. Section 725 of the FW Act prevents an applicant from making more than one application over the same set of facts. This provision of the FW Act is there to stop an applicant from ‘double dipping’. I note that the Fair Work Bill 2008 Explanatory Memorandum provides:

“Clause 725 is the key operative provision.  It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.

Each of clauses 726 to 732 deals with different potential remedies.  They each set out particular circumstances in which a person may not be prevented from making an application under one of the clauses even where they have initiated an application under another clause.

In all cases the anti-double dipping provisions will not apply where the initial application has:

·   been withdrawn; or
·   failed for want of jurisdiction.”

1. I am satisfied and find that the application is a breach of s.725 of the FW Act, and therefore cannot succeed.

Has the Applicant established ‘exceptional circumstances’ warranting an extension of time for filing?

1. The Commission may grant a further period for filing if it is satisfied there are ‘exceptional circumstances’ to warrant the further period for filing.

1. In determining whether ‘exceptional circumstances’ exist, the FWC will have regard to the criteria outlined in s. 366 subsection (2) of the Act as follows:

   (a) the reason for the delay;

   (b) any action taken by the person to dispute the dismissal; 

   (c) prejudice to the employer (including prejudice caused by the delay);

   (d) the merits of the application; and

   (e) fairness as between the person and other persons in a like position.

2. The meaning of ‘exceptional circumstances’ was considered by a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd,[1] where it was held:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

1. The Respondent submitted that the onus of proving whether there are ‘exceptional circumstances’ which explain the delay and justify an extension of time rests with the Applicant. The Respondent has objected to the Commission allowing a further period for the Application to be filed.

1. The Applicant submitted that the Respondent has sought to rely on a “procedural technicality” to escape scrutiny. The Applicant submitted that the application must proceed in the interests of fairness and justice.

1. I now turn to the consideration of the matters set out in s.366(2) of the FW Act, to determine whether ‘exceptional circumstances’ have been established by the Applicant for granting an extension of time for filing.

Section 366(2)(a) - reason for the delay

1. The Respondent referred to the Applicant’s s.365 application form, in which the Applicant has acknowledged at section 1.5 that the application was filed out of time. The Respondent quoted the Applicant’s ‘explanation for late filing’ as outlined in his application, which provides:

“The Application is being lodged outside the standard 21-day timeframe due to the initial proceedings being directed at Combined Weld, my labour hire company, in the belief that they were the primary Respondent responsible for the dismissal. However, after further investigation and as outlined in the attached submission, it has become clear that YEM Technology – the host employer – was in fact the effective decision maker in my dismissal and the party that engaged in unlawful adverse conduct under the Fair Work Act.”

1. The Respondent noted that prior to bringing the present general protections application, the Applicant brought an unfair dismissal application against Combined Weld, which was filed within the statutory timeframe. The Respondent submitted the Applicant has not established a valid reason for the delay.

1. In response, the Applicant submitted that his delay in filing was cause by “employer manipulation and genuine legal confusion”.

1. The Applicant submitted that the delay in lodging his application was the direct result of unclear employment arrangements, stating that Combined Weld were the payroll provider, but YEM Technology had direct supervisory and dismissal control. The Applicant submitted that he lost time due to needing to consult multiple parties, including Combined Weld, legal contacts, and the Commission to determine which party was responsible for his dismissal.

1. The Applicant also sought to rely on the psychological toll stemming from workplace intimidation, aggression, and dismissal while overseas with a newborn family facing visa problems as issues which impacted his delay in filing the s.365 application.

1. The Applicant submitted that his delay in filing was not tactical, rather, it was the product of a deliberate and hostile environment created by the Respondent and confusion they allowed to persist.

1. I am not satisfied that the Applicant has experienced exceptional circumstances which would warrant the granting of a 2-month extension of time for him to lodge his general protections application.

1. I do not accept that the Applicant was confused as to the identity of his employer. The simple fact was that the Applicant was a sub-contractor, with his own ABN, to Combined Weld. Relevantly, the Applicant filed an unfair dismissal application against Combined Weld which was settled before another Member of the Commission on a commercial and confidential basis. Combined Weld ‘on-hired’ the Applicant to the Respondent as a labour hire employee. There is nothing unusual for a labour hire employee to be intertwined into the workforce of the host employer. It is uncontroversial that labour hire employees are supplementary employees of the host, who work under the direction of the host employer.

1. Further, the text message of the Applicant to a former colleague on 29 April 2025 is informative in relation to the intent of the Applicant:

“It’s just how it’s done in this case,,,investigate the labour hire 1^st to see if they broken any laws and whether they protected me and my work rights,,

…

Yea I’m just talking about my labour hire,,coz the process is to investigate them first,,,

After the commissioner is satisfied that he’s sorted them out however he’s going to do that. And yem…”

The Applicant flagged that he was proceeding with his unfair dismissal matter against Combined Weld and would then go after the Respondent. I note that the Applicant filed his application 13 days after his text message to his former colleague and 6 days after his unfair dismissal conference before another Commission Member. I am satisfied and find that his pleaded ignorance in relation to not knowing the true identity of his employer is not genuine.

1. The Applicant’s twins were born in January. The Applicant’s engagement concluded on 19 February. The circumstances may have been unfortunate on a personal basis due to the birth of his twins and his financial and living constraints, but these situations did not impede the Applicant from lodging his unfair dismissal matter against Combined Weld on time.

1. I find that the reasons identified above weigh against the granting of an extension of time.

Section 366(2)(b) - any action taken by the person to dispute the dismissal

1. The Respondent noted that the Applicant filed an unfair dismissal application with the Commission on 3 March 2025, against Combined Weld.

1. The Applicant submitted that he took “repeated action” to dispute his dismissal. He submitted that “despite being overseas and under hardship”, he took the following immediate steps to dispute his dismissal:

1. He contacted Combined Weld to clarify the employment status;

2. He sought clarification from supervisors and YEM representatives who he says evaded responsibility; and

1. He attempted to secure legal and administrative support, but was faced with “silence and misdirection”.

2. As I found above, the Applicant filed his unfair dismissal application against Combined Weld within the statutory timeframe, with the intention of later bringing an application against the Respondent.

1. I find that this weighs against the granting of an extension of time.

Section 366(2)(c) - prejudice to the employer

1. The Respondent submitted that it would be prejudiced to the extent it has to defend the Applicant’s claim and bear the inconvenience, financial expense and loss in productivity of undertaking this activity.

1. The Applicant submitted that there is ‘zero material prejudice’ to the Respondent, and that no operational or financial harm has been caused by the delay.

1. I find that this is a neutral consideration.

Section 366(2)(d) - merits of the application

1. The Respondent submitted that it is unclear as to the manner in which the Applicant asserts the Respondent has engaged in adverse action against him in response to his exercising or purporting to exercise a workplace right. Further, the Respondent maintained that there can be no suggestion that it ‘terminated’ the Applicant in circumstances where he was an employee of Combined Weld.

1. The Applicant submitted that the merits of his application as “substantial” having regard to the following matters:

1. Verbal abuse by his supervisor;

2. A forced transfer under duress after objecting to hostile behaviour;

1. Denial of return flights and access to site;

1. Disrespect of cultural and family obligations; and

1. His dismissal being delivered with no warning, no meeting, and no valid performance concerns.

1. It is not in dispute that the Applicant had a disagreement with his Supervisor in April/May 2024. I do not accept that there is any connection, due to the passage of time, between this situation and the cessation of the Applicant’s employment some 10 months later. The simple fact is that the Applicant was one of seventy-two labour hire employees who were demobilised from site between December 2024 and March 2025. I am satisfied that there is nothing sinister about the situation and the Applicant was simply part of the normal downsizing process where supplementary labour is let go before permanent employees.

1. While the FW Act requires me to take into account the merits of the application in considering whether to extend time, in the matter of Kornicki v Telstra-Network Technology Group (Kornicki)[2] the Commission considered the principles applicable to the extension of time discretion under the formers.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.”

1. For the purposes of determining whether to grant an extension of time the Commission “should not embark on a detailed consideration of the substantive case”.[3]

1. I adopt the obiter in Kornicki.

1. I find that the merits of the application are a neutral consideration.

Section 366(2)(e) - fairness as between the person and other persons in a like position

1. The Respondent made no real submissions in relation to this criterion.

1. The Applicant made general submissions relating to ‘fairness’, submitting that the Respondent is a large, well-resourced company. The Applicant submitted that he is a dismissed FIFO worker with a young family, facing financial hardship and international legal complexity. The Applicant submitted that denying his claim over a “minor procedural delay” would reinforce systemic imbalance and punish an individual who made every reasonable attempt to clarify and act.

1. I find this to be a neutral consideration.

Conclusion

1. I find that the Applicant has not substantiated an ‘exceptional circumstance’ which would warrant me granting him an extension of time for filing his general protections application.

1. In accordance with the obiter in Nulty, I have determined it is not appropriate for me to grant an extension of time for the Applicant to file his application.

Conclusion

1. For the reasons stated above, I am satisfied and find that the Applicant does not have the capacity to bring this application against the Respondent due to:-

a)The Applicant was not an employee of the Respondent; and

b)The Applicant has already lodged and settled an unfair dismissal application, so this application is a breach of s.725 of the FW Act.

1. If I am wrong on both of these conclusions above, then I am satisfied that the Applicant has not established the existence of exceptional circumstances to warrant an extension of 2 months to allow the Applicant to lodge his application.

1. The Respondent’s jurisdictional objections are upheld.

1. The Applicant’s general protections application is dismissed.

1. I so Order.

COMMISSIONER

[1] (2011) 203 IR 1.

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[3] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

Printed by authority of the Commonwealth Government Printer

<PR790586>