Peter McKenzie v Benchmarque Recruitment Services Pty Ltd t/a Benchmarque Recruitment Services Pty Ltd

[2017] FWC 4922

[2017] FWC 4922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Peter McKenzie
v
Benchmarque Recruitment Services Pty Ltd t/a Benchmarque Recruitment Services Pty Ltd
(U2017/7313)

VICE PRESIDENT HATCHER SYDNEY, 22 SEPTEMBER 2017

Application for an unfair dismissal remedy.

Introduction

[1] Mr Peter McKenzie has lodged an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of the termination of his employment with Benchmarque Recruitment Services Pty Ltd (Benchmarque). Mr McKenzie’s application was lodged on 7 July 2017. The date of dismissal identified in his application is 5 June 2017. Mr McKenzie has applied for the grant of an extension of time to make his application under s.394(3).

[2] Benchmarque is a labour hire agency for the hospitality and events industry. Its position is that Mr McKenzie has not been dismissed from his employment, but has only been removed from his assignment with a particular client. In the alternative, it contends that if Mr McKenzie was dismissed, there are no exceptional circumstances justifying the grant of an extension of time to make his application.

[3] The preliminary issues concerning whether Mr McKenzie was dismissed and, if he was, whether an extension of time should be granted, are the subject of this decision.

Facts

[4] Mr McKenzie and Ms Lynette Franco, the Manager, People and Culture, of Benchmarque, gave evidence in relation to the two preliminary issues. They were both credible witnesses. Except for one matter, which will be mentioned later, their evidence was not inconsistent about any matter of significance.

[5] Mr McKenzie’s employment with Benchmarque commenced in 2015. His evidence was that he had undertaken a hospitality course at a college, and through the college he was able to obtain a job interview with Benchmarque. He understood the interview concerned an assignment at The Star (a casino complex in Sydney). He undertook an interview/ assessment process, and was then offered the position. I accept Mr McKenzie’s evidence in this respect.

[6] Mr McKenzie signed an employment contract (Contract) with Benchmarque on 20 February 2015. Clause 2.2 of the Contract provided that “This Agreement shall apply to all work performed by the Employee on assignment with a Client of the Employer”, and clause 2.3 provided that “This Agreement and SAC issued to the Employee from time to time in relation to an assignment with a Client of the Employer shall form the terms and conditions of the Employee’s employment”. A “SAC” was defined in clause 1 to mean “Summary of Assignment Conditions”. Clause 3.1 relevantly provided that Mr McKenzie was employed as a “casual on-hired employee” and that “Termination of an assignment by the Employer does not of itself constitute termination of employment”. Clause 4.1 permitted Benchmarque to terminate the employment on one hour’s notice. Attached to the Contract was a SAC for the position of “Bar Back” with The Star which, among other things, identified the hourly rate of pay, the place of work, and The Star manager to whom Mr McKenzie was to report. Mr McKenzie’s evidence was that, as a practical matter, he received his training and work direction from personnel of The Star, and Benchmarque’s role was confined to advising him as to his work roster. His work at The Star constituted his livelihood and sole occupation.

[7] While at work at The Star on 1 June 2017, Mr McKenzie was involved in an incident which led to him being accused of unprofessional, disrespectful and inappropriate conduct towards a manager. This caused management at The Star to request the immediate removal of Mr McKenzie from his assignment. Mr McKenzie did not perform any work at The Star after that date.

[8] On 5 June 2017 Mr McKenzie attended a meeting at Benchmarque with Ms Peschka Nied, who was the outgoing Manager, People and Culture, and Ms Franco, who had just been employed to replace her. At this meeting, it was explained to Mr McKenzie that his assignment with The Star had been terminated because of the incident which occurred on 1 June 2017. Mr McKenzie considered that he had been dismissed, although he acknowledged that he was not expressly told that his employment with Benchmarque was terminated. Ms Franco’s evidence was that Ms Nied made some reference in the meeting to a possible discussion about “other options”, which Mr McKenzie denied. I am prepared to accept that something of this nature may have been said, but if so it was of little consequence. Mr McKenzie was not, then or later, offered any other assignment, and Ms Franco accepted that Benchmarque had not taken any step to find alternative work for Mr McKenzie. During or at the end of the meeting, Mr McKenzie was required to sign a document, under Benchmarque’s letterhead, entitled “STAR Employee Exit Form”, which summarised the circumstances of the termination of his assignment with The Star.

[9] Mr McKenzie’s evidence was that, in the days immediately after the 5 June 2017 meeting, he discussed what had occurred with his family, and became aware of the possibility of making an unfair dismissal application. He then undertook research online, including on the Commission’s website, about the possibility of making an unfair dismissal application. Crucially, he said that by 12 June 2017 he was aware of the 21-day time limit for making an application. However, he decided to adopt a strategy of trying to obtain reinstatement to his position at The Star directly before making an unfair dismissal application. The initial step he took was to attempt to ring Ms Nied on three occasions on 9 June 2017, without success (she had departed her employment by this time).

[10] Mr McKenzie then decided to approach The Star directly. He contacted a manager he was friendly with there, Mr Daryl Daito, and a more senior manager, Mr Anthony Das, to attempt to get his job back. He was eventually successful in having a face to face meeting with Mr Das on 12 June 2017, where he put his case for reinstatement. Mr Das made it clear that Mr McKenzie had engaged in wrongdoing, and Mr McKenzie apologised for this. It appears that Mr Das said he would speak to the Director of Events at The Star, Mr Scott Bain, about Mr McKenzie’s situation.

[11] Mr McKenzie said that he left the meeting with a significant degree of confidence that he might be reinstated and that as a result he was not overly concerned about the 21-day time limit for lodging an unfair dismissal application. He also had a concern that if he lodged an application, it might prejudice his chances of obtaining reinstatement directly. Although I accept that, subjectively, Mr McKenzie formed the belief that he had reasonable prospects of being reinstated as a result of his meeting with Mr Das, there seems to have been little objective basis for this belief. Mr McKenzie could not identify anything which Mr Das specifically said that warranted the degree of confidence which he had.

[12] Mr McKenzie texted Mr Das on 19 June 2017 inquiring whether there was “any response”, presumably from Mr Bain, and the reply was “Hey mate he said will get back to me”. Mr McKenzie next texted Mr Das on 23 June 2016 inquiring whether there was “any follow up?”, but Mr Das did not respond until 3 July 2017 (10 days later), saying “Mate it is going to bit tricky (sic) to get you back on board. Whatever is the result I will make sure you are informed by Wednesday”. Mr McKenzie then texted “Okay, why is that? Should I come in to discuss?”, to which Mr Das replied, somewhat crushingly, “Mate what you have done is wrong? (sic) If I need you to come in I will let you know”.

[13] At this point it appears Mr McKenzie realised that he was not going to be reinstated. However he did not file his application until 7 July 2017, four days later. He said this was because he had a further discussion with family about his position and needed to prepare the application. As a result, the application was filed a total of 32 days after the date upon which Mr McKenzie contended that he was dismissed, or 11 days late.

[14] On 7 July 2017, shortly before he lodged his application, Mr McKenzie made contact with Benchmarque to give notice of his intention to make an application and to explore whether there was any opportunity to resolve it. He eventually spoke to Ms Michelle Watson, the General Manager. Shortly after Mr McKenzie lodged his application, Ms Watson sent him an email which included the following:

“...

First and foremost, the most important thing that you should understand is that your employment with Benchmarque has not been terminated. Your assignment with our client The Star and at their venue Event Centre has unfortunately ended, at the request of our client due to the incident that occurred on June 1^st, 2017 as documented and signed by you in your exit paperwork.

. . .

As I have mentioned to you already, if you would like to be considered for further casual roles with Benchmarque, please let me know and I will put you in touch with one of our People & Culture Administrators who look after our casual team. Unfortunately, our recruitment drive is on hold for our next round of assignments due to the low season of July, however we are looking to pick back up around the first week of August and may be able to pipeline you for these roles following your successful completion of a skills based assessment...”

Was Mr McKenzie dismissed?

[15] Under s.386(1)(a) of the FW Act, a dismissal occurs if “the person’s employment with his or her employer has been terminated at the initiative of the employer”. Benchmarque submitted that the termination of Mr McKenzie’s assignment at The Star did not constitute the termination of his employment because the Contract provided for assignment-based employment which did not necessarily terminate merely because an assignment terminated. I reject that submission. In my view, s.386(1)(a) is concerned with the termination of the employment relationship, not the contract of employment. 1 The subsistence of an employment relationship is dependent on the provision and performance of work and the payment of remuneration for that work. The only thing which gave substance to the Contract in this sense was the work which Mr McKenzie performed at The Star. He was engaged specifically to perform that work, the SAC for that work constituted an essential part of the Contract, and once Mr McKenzie’s assignment to perform that work ended there was no attempt by Benchmarque to find Mr McKenzie alternative work. On the evidence, neither party had any expectation that Benchmarque would provide any further work. Arguably, the Contract may have continued in effect after 5 June 2017, but it would be a fiction to suggest that the employment relationship continued after that date in circumstances where Benchmarque and Mr McKenzie had no dealings with each other whatsoever. Ms Watson’s email of 7 July 2017 I regard to be self-serving and responsive only to Mr McKenzie’s unfair dismissal application.

[16] Accordingly, I find that Benchmarque dismissed Mr McKenzie on 5 June 2017.

Extension of time

[17] In order for Mr McKenzie’s unfair dismissal application to be competent, it is necessary for him to obtain an extension of time to make the application under s.394(3), which provides:

(3)  The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and

(b)  whether the person first became aware of the dismissal after it had taken effect; and

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

(d)  prejudice to the employer (including prejudice caused by the delay); and

(e)  the merits of the application; and

(f)  fairness as between the person and other persons in a similar position.

[18] I will deal with the matters required to be taken into account under s.394(3) in turn.

The reason for the delay

[19] As earlier set out, Mr McKenzie became aware of the 21-day time limit shortly after being dismissed. He made a considered decision to delay lodging an application in order to first pursue a strategy of negotiating with The Star directly to get his job back. He was also concerned that if he lodged an application while he pursued that strategy, it might prejudice his chances of obtaining reinstatement directly through negotiation. Mr McKenzie continued to pursue this strategy on the basis that he had a degree of confidence that he might be reinstated, even though there was little to justify this confidence objectively. I note two matters in particular. First, when Mr McKenzie texted Mr Das on 23 June 2017 seeking a response to his request for reinstatement, there was no immediate reply, but Mr McKenzie continued to take no action to lodge an application. The 21-day limitation period expired on 26 June 2017, but Mr McKenzie continued to wait for a total of ten days until he eventually received a reply on 3 July 2017. Second, even when it became apparent on 3 July 2017 that The Star was not going to accede to his request for reinstatement, Mr McKenzie waited another four days before making his application.

[20] Having regard to these circumstances, I do not consider that Mr McKenzie has a justifiable reason for his delay in the making his application. This must weigh against the grant of an extension.

Whether the person first became aware of the dismissal after it had taken effect

[21] Mr McKenzie became aware of the dismissal as soon as it took effect on 5 June 2017. This is not a matter which weighs in favour of the grant of an extension.

Any action taken by the person to dispute the dismissal

[22] Mr McKenzie attempted to dispute his dismissal directly with Benchmarque on 9 June 2017, but was unable to make contact. Then, as earlier stated, he pursued reinstatement directly with The Star at a meeting on 12 June 2017. While Mr McKenzie was entitled to pursue this course, I do not consider that it in any way prevented him from lodging an application on or before 26 June 2017. He should have been aware by that date that his attempts to dispute the dismissal were not making progress. This is not a matter which supports the grant of an extension of time.

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

[23] Benchmarque properly conceded that it was not prejudiced by the delay. This weighs in favour of the grant of an extension.

The merits of the application

[24] There is insufficient evidence before me to assess the merits of the application, except that Mr McKenzie’s apology to Mr Das is indicative of acceptance of some degree of wrongdoing on his part. This consideration does not weigh in favour of the grant of an extension.

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

[25] This is not a relevant consideration in this case.

Conclusion

[26] It has been held that “The test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances”. 2 Having regard to the above matters, I am not satisfied that the test is met. Mr McKenzie made a considered decision not to file an application within the 21-day time period, and no exceptional circumstances exist to justify him being relieved of the consequence of that decision.

[27] I decline to grant an extension of time under s.394(3). Accordingly, Mr McKenzie’s unfair dismissal application is incompetent and must be dismissed.

VICE PRESIDENT

Appearances:

K Massey on behalf of Peter McKenzie.

P Ryan with L Franco on behalf of Benchmarque Recruitment Services Pty Ltd.

Hearing details:

2017.

Sydney:

21 September.

 1   See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 204-5, applied to s.386(1)(a) of the FW Act in White v Mahony [2016] FCAFC 160, 226 IR 221 at [23]

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

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