Mr Zachary William Trott v Dawsons Engineering (N.Q.) Pty Ltd
[2022] FWC 3266
•12 December 2022
| [2022] FWC 3266 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.372 - Application to deal with other contravention disputes
Mr Zachary William Trott
v
Dawsons Engineering (N.Q.) Pty Ltd
(C2022/6994)
| COMMISSIONER SPENCER | BRISBANE, 12 December 2022 |
Application to deal with other contraventions dispute – jurisdiction – application filed out of time – exceptional circumstances do not exist – application dismissed.
Introduction
This decision concerns an application by Mr Zachary William Trott (Applicant) under s.372 of the Fair Work Act 2009 (the Act). The Respondent is Dawsons Engineering (N.Q.) Pty Ltd (the Respondent).
Mr Trott applied to the Fair Work Commission pursuant to s 372 of the Act (General Protections not involving dismissal), alleging contravention of workplace rights, seeking financial compensation and a written apology. The Applicant alleged the breach of General Protections were s 340 protection, s 351 discrimination, and s 352 temporary absence due to an illness or injury.
The Respondent filed a F8C response which attached to this Application three separate Employee Assignment Forms that set out that they had engaged the Applicant for three separate short periods, approximately 12 days in total. They opposed the General Protections Application and the Extension of Time being granted.
The Respondent’s response raised two jurisdictional issues. They contend that the Applicant is not an employee of the company, thereby not being eligible to make a claim against it under s 372. The Respondent also raised that the Applicant’s engagements were as a casual labour hire employee, and the last engagement ended on 22 October 2018, meaning that the Application was made outside of the 21-day timeframe stipulated in s 366 of the Act. The Applicant’s General Protections Application was made on 18 October 2022, approximately four years after his last engagement ended with the Respondent. The Respondent sought dismissal of the Application under s 587 of the Act, on the basis that it was ‘frivolous and vexatious’.
The Directions were set requiring both parties to respond to the extension of time jurisdictional issue and whether this matter could be determined on the papers, or if they sought a hearing. Both parties provided submissions in relation to the extension of time issue. The Respondent provided consent for the matter to be determined on the papers. The Applicant did not respond on this; however, it is noted that the Applicant’s only contact details provided was his address, listed as ‘Incarcerated, Maryborough Correctional Centre’, and all correspondence was required to be undertaken via the postal service. Further, the Applicant had not provided any means by which a hearing could be held in terms of appearing in person, by telephone, or virtually. In circumstances where the Applicant is incarcerated and has not provided any telephone or electronic contact details, the matter was determined on the papers, and the discretion was exercised pursuant to s 591 and s 593(1) not to hold a hearing.
Relevant provisions of the Act
The relevant provisions of the Act are s 365, s 366, and s 372 respectively.
Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
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 the FWC for the FWC to deal with the dispute.
Further, Section 366 is detailed as
“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.”
The Applicant has made the Application under Section 372. Section 372 provides:
“372 Application for the FWC to deal with a non‑dismissal dispute
If:
(a) a person alleges a contravention of this Part; and
(b)the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute;
the person may apply to the FWC under this section for the FWC to deal with the dispute.”
Jurisdictional issues
The Respondent’s jurisdictional objection regarding the Applicant not being an employee of the company is outlined in Q3.1 of the Form F8A Response, which relevantly states
“The Applicant is not an employee. The Applicant worked for the company as a casual non-skilled labourer on three distinct occasions in October 2018. The first engagement was from the period 3/10/2018-8/10/2018. The second engagement was for the days 15/10/2018-17/10/2018. The third engagement was for the period 17/10/2018-22/10/2018. Employee assignment forms have been attached.
The business determined that the Applicant was not suitable for future employment”.
This is reinforced in Q5.1 of the Form F8A Response, where the Respondent stated that “the employment relationship with the Applicant was for the periods specified in the Employee Assignment Form only”. The Respondent further referred to the engagement in their submissions.
The Applicant stated the following, in his Application, regarding his departure from the Respondent
“In 2019, after Workcover conducted an investigation into the incident in 2018 during a heated phone call with a Workcover staff member where comments were made out of anger. The Workcover employee had contacted Dawson’s and informed them of my comments to which I was terminated by the company and in 2019, one afternoon that same Dawson’s supervisor had attempted to provoke myself. As the supervisor had known my address, one afternoon around the time of my termination from those comments, he had driven in clear view of myself and future housemate.”
The ‘incident’ is outlined in the Application as a ‘workplace accident through no fault of my own doing (sic) being a hydrofluoric acid burn to the face’. The Applicant then goes onto detail how after being discharged from hospital as a result of the incident, he went back to the Respondent seeking more work, but was ‘denied any more work anywhere’.
The Applicant provided further correspondence to the Commission. In his submission, the Applicant stated that he was dismissed from the Respondent in January 2019 as per the ‘contract between WorkCover and Dawson’s as explained’.
Consideration
The pre-conditions to a valid application under s 372 are that “the person alleges contravention of this Part” and that the person “is not entitled to apply to the FWC under s 365”[1].
An Application under s 365 requires a dismissal to have occurred. This must be concluded to be an ‘objective fact’. It is undisputed by both parties that the Applicant’s employment was not ongoing. The Applicant referenced the termination numerous times in his correspondence with the Commission, and the Respondent stated that the Applicant’s last casual labour hire engagement ended on 22 October 2018.
The Casual Labour Hire Contracts submitted by the Respondent are clear that the Applicant was not employed by the Respondent on an on-going basis but engaged as per the 3 short contracts in accordance with the documents provided. It was submitted that the Applicant was ‘not suitable for future employment’. This precludes the Applicant from being eligible to make an Application under s.372.
In Coles v Milford, it was set out that “There may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended, and the expiration of the statutory time limit must be identified”.[2] Whilst the nature of the engagement between the parties in the current matter is in dispute, the last engagement between the parties is identified to have ended on 22 October 2018. That date is determined to be the date the employment relationship ended and is the date from which the delay in filing is considered.
Section 586 of the Act allows the Commission to correct or amend an application or otherwise waive an irregularity in the form or manner in which an application is made to the Commission, with the section providing as follows;
“586 Correcting and amending applications and documents
FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.”
In the matter of Dr Tareq Abu-Izneid v Charles Darwin University,[3] the Full Bench considered whether an application made under s.372, could be amended and allowed to proceed under s.365 of the Act.
The Full Bench noted the decision in the earlier matter of Hewitt v Topero Nominees[4] in which the Full Bench had concluded that “the Commission does not need to be satisfied that the applicant has been dismissed from their employment before holding a s.368 conference and that it is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.”[5] Having considered this point, the Full Bench directed that the relevant file “be amended to record that it is made under s.365 of the Act because it was apparent at the time of the application that Mr Abu-Izneid had been dismissed”.[6]
Similarly, in the current matter, there was no evidence of any ongoing employment or engagement between the parties after 22 October 2018. Accordingly, I exercise the discretion pursuant to s 586(a) to amend the s 372 Application to an Application made pursuant to s 365.[7] I order accordingly. The s 365 Application remains approximately 1400 days out of time.
Application made out of time
Section 366 of the Act states that “An application for a dismissal dispute must be lodged with the Fair Work Commission within 21 days after the dismissal takes effect”. The Application was lodged on 18 October 2022, and states in the attachment that Mr Trott’s employment was ‘terminated in January 2019’. Although this is disputed by the Respondent in their F8A Response, and further submissions, which state the Applicant finished his employment in October 2018, the Application remains out of time by over 1400 days.
However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a)The reason for the delay; and
(b)Steps taken to dispute the termination; and
(c)Prejudice to the employer; and
(d)Merits of the application; and
(e)Fairness between the person and other persons in a like position
The Act allows the Commission to extend the period within which an General Protections application must be made, only if it is satisfied that there are ‘exceptional circumstances’. ‘Exceptional circumstances’ have been considered as circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may 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 can be considered exceptional.[8]
Reasons for the delay
The Act requires consideration of the matters in s 366(2) as to whether there should be the granting of an extension of the standard time period.
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[9], the Full Bench found that
(a)generally, the assessment of whether exceptional circumstances exist will require the consideration of all the relevant circumstances because even though no one factor may be exceptional, the factors considered in combination might support such a finding (at [17] and [38]);
(b)the obligation to “take into account” the matters set out in the statute means that each of those matters must be treated as a matter of significance in the decision-making process insofar as they are relevant (at [19]);
(c)no one factor need be exceptional in order to enliven the discretion to extend time (at [38]); and
(d)individual matters might not be particularly significant when viewed in isolation, but it is necessary to consider the matters collectively and to ask whether, collectively, the matters disclose exceptional circumstances (at [39])
Decisions of the Commission have assessed wherever there is an acceptable or reasonable explanation for the delay. In Stogiannidis, in considering the period of delay in filing an application, the Full Bench stated ‘the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered’.[10]
The Applicant’s submissions refer to a number of events he alleged occurred as a result of the Respondent’s conduct. These include the development of severe anxiety and depression, a relationship breakdown, a deterioration of his mental health leading to suicide attempts, and incarceration. It is mentioned briefly in the letter provided to the Commission that the Applicant has been ‘incarcerated since June 2019’. However, it is not explained how this totally impeded him from making an application within time, particularly as the incident and last engagement occurred in October 2018. Further, the Applicant has not provided any particulars of the events generally referred to as matters relevant to him failing to file the application within the 21-day legislative time period
Further, the Applicant makes reference to his mother assisting him with the receipt of documents. He has managed to file this Application and correspond with the Commission while in the Correctional Centre, displaying that his incarceration, although a barrier to electronic communication, did not preclude him from lodging an Application. The Applicant has not particularised the events or challenges to filing within the time frame or the period prior to incarceration in 2019 or at a significantly earlier time within the four-year period of delay.
It is acknowledged that the Applicant in his submissions referred to experiencing a range of events that have caused him personal turmoil. He has not provided any evidence of any related medical issues, nor has he specified the dates of any of the matters referred to as the reasons for the delay, or how these matters prevented him from lodging the application. The issues he refers to do not provide a clear explanation as to why the Application was lodged well outside the 21-day statutory timeframe.
Whether the person first became aware of the dismissal after it had taken effect;
Any action taken by the person to dispute the dismissal
The Applicant’s submissions (apart from the Workcover Application) do not outline any action taken to dispute the end of the engagement with the Respondent. The Applicant makes reference to a ‘Workcover claim’ being lodged, but also on 18 October 2018 it was determined that the Applicant was ‘medically cleared and deemed medically fit to return to work’. This occurred prior to the end of the engagement, and was finalised long before the Application was lodged. The lack of action taken by the Applicant to dispute the dismissal weighs against a finding to extend time.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent’s submissions demonstrating the prejudice caused by the delay in filing the Application related to the significant period of the delay. There is no material that provides any evidence of particular prejudice to the employer beyond the usual prejudice that accrues in relation to an excessive period of time as is the case in this matter. This weighs against the Application for the extension of time.
The merits of the application
The Act requires a consideration of the merits of the application in determining whether there are exceptional circumstances. It is not appropriate to make a detailed assessment of the merits based on the limited material provided. An assessment of the merits has been made based on the material provided.
The Respondent stated that they determined that the Applicant was ‘not suitable for further employment’ after three engagements with the Respondent. The Applicant alleged that adverse action was taken against him as he was not further employed after the ‘mining accident’. The Applicant’s incarceration commenced a period at a time after the engagement ended. Whilst it has been taken into account; the dates are only generally referred to and any associated implications limiting the Applicant’s ability to file the Application are not made out. Whilst limited information is provided, the Employer has provided a clear basis of the three separate, casual engagements of the Applicant, as a labour hire employee. The allegations of adverse action have not been made out, taking into account the evidence of the short-term labour hire contracts that have been provided to him. These contracts, in terms of the commencement and finish date, were in place prior to the ‘incident’ that has occurred. There is no evidence provided by either party that there was to be ongoing engagements.
Based on the material provided before the Commission, it is concluded that there is limited merit to the application and the reasons referred to for the delay, do not satisfy the exceptional circumstances test.
Fairness between the person and other persons in a similar position
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[11]
Although there have been matters before the Commission before involving out of time applications with incarcerated applicants, each matter ultimately depends on the individual circumstances of the case. I afford this factor a neutral consideration in my determination of the case.
The legislative timeframe of 21 days is set to provide fairness between applicants, and to provide a strict period to be adhered to for filing the Application. The Applicant’s failure to meet the time frame and the reasons provided do not satisfy that exceptional circumstances existed have been taken into consideration. This weighs against granting an extension to the time frame to allow for the filing of the Application. To grant the extension of time would not provide a fair consideration of the legislative timeframe between applicants. Particularly, taking into consideration the significant period of the delay beyond the 21-day timeframe and the limited reasons set out in relation to the impediments to filing the Application.
Conclusion
Whilst the current circumstances of the applicant being incarcerated are recognised, the Applicant does not sufficiently set out the connection between the events and the significant period of the delay to demonstrate exceptional circumstances, or to justify the granting of an extension of time pursuant to s 366(2). The 21-day period for accepting the application is therefore not extended and the s 365 General Protections application is thereby dismissed.
I Order accordingly.
COMMISSIONER
[1] Coles v Milford [2020] FCAFC 152 at [64].
[2] Coles v Milford [2020] FCAFC 152 at [59].
[3] [2014] FWCFB 1553
[4] [2013] FWCFB 6321
[5] [2014] FWCFB 1553, at [11]
[6] [2014] FWCFB 1553, at [17]
[7] Coles v Milford [2020] FCAFC 152 at [64].
[8] Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[9] [2018] FWCFB 901
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[11] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31]
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