Ms Ashlee O'Connor v Greater Geelong Constructions Pty Ltd trading as GGC Cranes, Rigging & Scaffolding
[2024] FWC 3349
•3 DECEMBER 2024
| [2024] FWC 3349 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Ashlee O'Connor
v
Greater Geelong Constructions Pty Ltd trading as GGC Cranes, Rigging & Scaffolding
(C2024/4741)
| COMMISSIONER SIMPSON | BRISBANE, 3 DECEMBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection application filed out of time – application dismissed
On 10 July 2024, Ms Ashlee O’Connor (the Applicant) applied to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter is Greater Geelong Constructions Pty Ltd trading as GGC Cranes, Rigging & Scaffolding (the Respondent). The Respondent was initially incorrectly identified, but I granted an application to amend the named Respondent exercising power under section 586 of the Act.
The Applicant’s Form F8 stated that the Applicant was notified of the dismissal on 12 June 2024 and the dismissal took effect on 17 June 2024. In answer to question 1.4 on the Form 8, asking if the application was made within 21 calendar days of the dismissal taking effect, the Applicant answered yes. On 18 July 2024, the Applicant and the Applicant’s solicitor Melissa Demarco of Demarco Law were sent correspondence from the Commission advising that it seemed the application was lodged late, and the application had been sent to the Respondent.
On 19 July 2024, the Applicant’s solicitor sent email correspondence to the Commission advising that her client was notified of her dismissal in writing on 13 June 2024 and as the Applicant was entitled to one week’s notice, the date of dismissal took effect on 20 June 2024. The Applicant’s solicitor filed a Form F1 seeking to amend the application correcting the date of being advised of the dismissal to 13 June 2024, and correcting the date of dismissal to 20 June 2024.
On 25 July 2024, the Respondent’s solicitors McKays Solicitors wrote to the Commission filing the Respondent’s Form F8A response and a Form F53.
The Respondent raised two jurisdictional objections, that the application was made outside of the 21-day statutory time period, and also that the Applicant was not an employee and not dismissed.
The Respondent submitted that on 12 June 2024, the Applicant was advised that the last day the Respondent would require her services would be 17 June 2024, and on 13 June 2024 at 2.24pm, the Applicant advised she would be unable to provide any services from 13 June 2024 to 21 June 2024.
On 13 June 2024 at 2.58pm, the Respondent replied to the Applicant via email, stating inter alia, that: “Given you are unable to work until Monday 24 June 2024 then I think we can all agree your last day working with GGC was yesterday” and “the business relationship has now ended” (the effective date).
The Respondent submitted that on 10 July 2024, the Fair Work Commission received the application outside of the 21-day time limit prescribed (i.e. 27 days after the alleged “dismissal” took effect).
The Respondent noted that:
(a)The application falsely states “yes” in response to the question, “are you making this application within 21 calendar days of your dismissal taking effect?”
(b)The Applicant has since filed a Form F1 to amend the application, including to amend the response to question 1.3 of the application (i.e. the date of the alleged “dismissal” taking effect) to 20 June 2024 on the basis that the Applicant alleges she was entitled to one weeks’ notice of termination.
(c)The Respondent disputes that the Applicant was entitled to one week’s notice and, in any event, submits that this would not change the effective date of the alleged “dismissal” which occurred on 13 June 2024.
(d)The Respondent also submitted that:
·The Respondent opposed the application seeking to amend the application on the basis the alleged “dismissal” did not take effect on 20 June 2024; and
·The matters alleged by the Applicant in the Form F1 are not exceptional circumstances for the application to be lodged late.
On 31 July 2024, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objections. A jurisdictional hearing was listed for 17 September 2024. In accordance with directions the Respondent filed submissions and witness statements. The submissions in relation to the out of time objection included the following:
(a)The Applicant was employed by the Respondent between the period of 14 October 2023 to 10 November 2023.
(b)The Applicant was thereafter engaged by the Respondent as a contractor from 13 November 2023 until her engagement was terminated as follows:
a.On 12 June 2024:
i.Mr Josh Remana (Queensland State Manager of the Respondent) (Mr Remana) verbally advised the Applicant that the last day the Respondent would require her services was Monday 17 June 2024. Mr Remana acknowledged that he had provided notice to the Applicant of her last day, however advised the Applicant that there was no requirement to provide notice. This was because he believed the Applicant was not entitled to notice, as she was a contractor.
ii.Mr Remana confirmed the last day the Respondent would require the Applicant’s services of which he had advised the Applicant by sending a text message to the Applicant following this verbal discussion, asking the Applicant to confirm whether she would be working until Monday 17 June 2024.
b.On 13 June 2024, the Applicant advised Mr George Ruka (General Manager of the Respondent) (Mr Ruka) and Mr Remana by email that she was unable to work from 13 June 2024 to 21 June 2024.
c.On 13 June 2024, Mr Ruka replied to the Applicant by email, stating relevantly that:
“Yesterday when Josh spoke to you, he advised the last day we would require your services was Monday 17 June 2024. Given you are unable to work until Monday 24 June 2024 then I think we can all agree your last day working with GGC was yesterday.
Thank you very much for your assistance and efforts over the last several months, we are all very appreciative of everything you have done in your time sub-contracting to GGC.
Given the business relationship has now ended…”
The Respondent said the Applicant did not respond to this email or raise any issue with her last working day being 12 June 2024, and the Applicant returned company property she had in her possession on 14 June 2024. The Applicant’s application was filed in the Fair Work Commission on 10 July 2024 at 7.22pm.
The Respondent submitted that if a “dismissal” occurred (which is denied on the basis outlined in relation to the second jurisdictional objection below, i.e. that the Applicant was a contractor and not an employee) then the “dismissal” would have taken effect on 13 June 2024 (being the day that Mr Ruka communicated that the Applicant’s engagement was terminated effective that day, i.e. with the last day of services having been provided the day prior).
The Respondent submitted that this means that day one of the 21 days for lodgement would have commenced the day following the “dismissal”, i.e. on 14 June 2024. The Applicant’s application was only filed in the Fair Work Commission on 10 July 2024 at 7.22pm. Therefore, the Respondent submits that:
a.The application was filed on the 27th day after the “dismissal” took effect (6 days out of time).
b.The application should have been filed by 4 July 2024 to be considered within time.
The Respondent also submitted that the Applicant states in response to question 1.3 of her application that the date the “dismissal” took effect was “17 June 2024”. The Applicant also states “yes” in response to question 1.4 of the application which asked, “Are you making this application within 21 calendar days of your dismissal taking effect?”.
The Respondent submits even if the “dismissal” took effect on 17 June 2024, the application would still have not been made in time and therefore the Respondent submits that the Applicant has made a false and misleading statement in the application.
The Respondent made submissions in response to the subsequent Form F1 – Application to amend the application, including to amend the response to question 1.3 of the application to 20 June 2024 on the basis that the Applicant alleges she was entitled to one week’s notice of termination.
The Respondent submitted that the Applicant was not entitled to one week’s notice as the Applicant was not an employee, rather the Applicant was only provided with notice initially that her last day would be 17 June 2024 (as acknowledged in her own application by noting this as the effective date). Subsequently, as the Applicant could not provide services up to that date, her last day became 12 June 2024 and the effective date of termination of her engagement was 13 June 2024.
The Respondent submitted that any entitlement to notice, which it denies, would not change the effective date of the “dismissal” which for the reasons stated above occurred on 13 June 2024 as:
while a failure to provide notice may constitute a breach of contract and/or applicable laws (which the Respondent denies has occurred), the Respondent submits it does not alter the situation (i.e. the effective date).
It was clear that the services of the Applicant were not required after 17 June 2024 and were not able to be provided in any event from 13 June 2024. Therefore, the engagement clearly ceased on 13 June 2024 (as communicated and confirmed by Mr Ruka’s email to the Applicant on 13 June 2024).
The Respondent also submits, in the context above, that the Applicant’s claim to have been entitled to notice ending beyond 17 June 2024 (i.e. on 20 June 2024) does not have any factual or legal basis, is vexatious and without merit, and appears to simply be an attempt by the Applicant (after the fact) to try and have the claim considered to be in time after realising the application was out of time based on the Applicant’s initial claims.
The Respondent also submits that there are no exceptional circumstances for not lodging the application on time, noting that:
a)The Applicant has provided no reason for its delay (the Applicant is only relying on amending the application as outlined above) which the Respondent submits should weigh against the Applicant in this assessment.
b)The Applicant took no action to dispute the “dismissal” until the filing of the application and took no action to dispute any alleged failure to provide notice to 20 June 2024 until the filing of the Form F1. If this was an issue to the Applicant, the Respondent questions why this was not raised sooner and submits this goes towards the matters stated in its submissions.
c)If the application is not dismissed, this would cause prejudice to the Employer in having to respond to the application in circumstances where the Respondent considers there are clear issues with the Applicant submitting its application and then attempting to change this in what appears to simply be an attempt to try and “avoid” the out of time issue. The Respondent should not be prejudiced due to what it submits is effectively a “change of mind” on the part of the Applicant to present a different position that would allow the application to have been made in time.
d)The Respondent does not consider the application has merit given the matters submitted in its Form F8A as to why there has been no contravention of the general protection provisions of the Act.
Given the above and that the application has been made beyond the time limit set by section 366 of the FW Act, the Respondent submits that the application must be dismissed. The Respondent further submits that if the Fair Work Commission agrees that the application should be dismissed on the above basis, then it is not relevant to consider the second jurisdictional objection.
The Respondent also filed three witness statements from Josh Remana, George Ruka and Adam McArdle foreshadowing evidence that would support the chronology of facts set out in its submission as well as in relation to the second jurisdictional issue if the first objection was not successful.
On 29 August 2024, the Applicant’s representative wrote to the Commission seeking a two-week extension to file their material and an adjournment of the hearing on the basis of a family death and the Applicant having to relocate her home for work. An extension was granted.
On 6 September 2024, the Applicant’s representative filed submissions and a statement from the Applicant. The submissions were primarily directed to the second jurisdictional issue, however made a brief submission in relation to the application being out of time. The Applicant’s submission submitted that the jurisdictional issue as to whether the Applicant was an employee or contractor should be determined before the out of time objection. The Commission’s approach is to deal with the jurisdictional issue of whether to extend time first and that is the approach I have adopted.
In relation to the out of time issue the Applicant submitted that she was verbally notified of her dismissal by Mr Josh Remana on 12 June during a discussion, and Mr Remana told the Applicant that he would provide her one week’s notice of termination. It was submitted that the Applicant took this to mean that her dismissal would take effect on 20 June 2024.
It was submitted that the Applicant obtained a medical certificate as she was extremely distressed and not able to work. After the Applicant provided her medical certificate stating that she was not fit to work from 13 June 2024 to 21 June 2024 inclusive, Mr George Ruka sent an email to the Applicant to confirm that the Applicant’s last working day with GGC was 12 June 2024 and was silent on the one week’s notice offered by Mr Remana and or when the dismissal would take effect.
The matter was listed for hearing on the afternoon of 17 September 2024 but was adjourned on the basis that another matter ran overtime. Subsequent to that adjournment, great difficulty was experienced in obtaining another date for hearing due to availability of the parties’ representatives.
On 30 October 2024, the Applicant’s representative wrote to the Commission advising that they were content for the matter to be determined on the papers. On 1 November 2024, the Respondent also advised that they were agreeable for the matter to be determined on the papers. I determined given the material before me I could proceed to deal with the matter on the papers concerning the time when employment or contracting relation came to an end, and, if necessary, whether to extend time.
Consideration
Date of termination
It is not in dispute that the email sent to the Applicant on 13 June included the following words:
“Given you are unable to work until Monday 24 June 2024 then I think we can all agree your last day working with GGC was yesterday” and “the business relationship has now ended”.
It is clear from the email that the relationship, whether it be a contract of service, or a contract for service, was ended that day with immediate effect by the inclusion of the words “the business relationship has now ended”. The email is unambiguously ending the relationship with immediate effect.
Given that finding is unavoidable it is clear the application was filed six days late.
Whether to Extend time
As I have found the application was filed out of time, an extension is required in order for the application to proceed. Section 366(2) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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 similar position.
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[1] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[2] 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 can be considered exceptional.[3]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional”[4]
(original emphasis)
(a) the reason for the delay;
The explanation given for the delay was based on the Applicant’s stated belief based off a conversation the day before on 12 June 2024 that the Applicant was to be given notice. While the Respondent is clear that in its view the relationship was a contracting relationship, regardless of the conversation on 12 June 2024, the email of 13 June 2024 made clear the relation was over with immediate effect.
As was submitted by the Respondent, even if the Applicant was an employee, which it disputes, it was clear from the email the relationship was over on 13 June 2024 and the Applicant was not being given notice. I am satisfied it was clear from the email that the relationship was ended that day.
Having considered the material before me I have concluded the reason for the six-day delay does not weigh in favour of granting an extension of time.
(b) any action taken by the person to dispute the dismissal;
The Applicant took no action to dispute the “dismissal” until the filing of the application and took no action to dispute any alleged failure to provide notice to 20 June 2024 until the filing of the Form F1. This does not weigh in favour of granting an extension of time.
(c) prejudice to the employer (including prejudice caused by the delay);
There would not be significant prejudice to the Respondent granting a six-day extension of time and I consider this a neutral consideration.
(d) the merits of the application;
If the Applicant were to be granted an extension of time, the second jurisdictional matter concerning whether the Applicant was an employee would need to be determined before being able to consider the merits of the substantive matter. As the determination of the second jurisdictional matter would require the hearing of evidence to resolve certain factual matters, I intend to treat section 366(2)(d) as a neutral consideration.
(e) fairness as between the person and other persons in a similar position.
There were no submissions on this issue. I intend to treat it as a neutral consideration.
CONCLUSION
I have determined, given the conclusions above, not to grant the amendment application contained in the Form F1 application filed on behalf of the applicant on 19 July 2024. I have weighed each of the matters in section 366(2) and I am not satisfied that there are exceptional circumstances in this matter warranting an extension of time. On that basis the application is dismissed. An order will be issued separately and concurrently with this decision to that effect.
COMMISSIONER
Hearing details:
Determined on the papers.
Final written submissions
6 September 2024.
<PR781937>
[1] (2011) 203 IR 1, 6 [15].
[2] Ibid 5 [13].
[3] Ibid 5–6 [13].
[4] (2018) 273 IR 156, 165 [38].
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