Reece Storme Ferrara v Safety Direct Solutions Pty Ltd, Noble Contracting Ii GmbH

[2021] FWC 6522

[2021] FWC 6522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Reece Storme Ferrara
v
Safety Direct Solutions Pty Ltd, Noble Contracting II GmbH
(C2021/5171)

COMMISSIONER YILMAZ MELBOURNE, 10 DECEMBER 2021

Application to deal with contraventions involving dismissal – is joining a new matter with a closed application a correction? – was there a dismissal? – application made outside the prescribed 21 days – whether there are exceptional circumstances – extension of time denied.

[1] On 27 August 2021, Mr Reece Storme Ferrara lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Safety Direct Solutions Pty Ltd and Noble Contracting II GmbH (collectively ‘the Respondents’). Mr Ferrara was employed by Safety Direct Solutions Pty Ltd (the First Respondent) in the position of paramedic, as a casual employee. A contract of employment was signed on 23 February 2021, to commence on 1 March 2021. 1 The contract stipulates that the base rate is an hourly rate, and that employment type is casual. The First Respondent is a registered training organisation and provides labour hire services to its clients. While employed with the First Respondent, Mr Ferrara only performed work for Noble Contracting II GmbH (the Second Respondent), a client of the First Respondent. Mr Ferrara ceased work on the placement prior to its scheduled completion time.

[2] On 30 March 2021, Mr Ferrara was removed from the client’s offshore drilling platform (the rig) and he returned to Darwin. Instead of continuing his travels to Perth as arranged by the First Respondent, Mr Ferrara booked a flight to Melbourne. The First Respondent gave evidence that Mr Ferrara informed it, that he did not wish to be contacted further. Mr Ferrara did not work again for either of the Respondents and he was paid until 30 March 2021.

[3] In addition to the matter of extension of time, the First Respondent contends that it did not dismiss Mr Ferrara, and Mr Ferrara submits that this application is an extension of the s.372 application (general protections not involving dismissal) that he made against the First Respondent in May 2021. He further seeks to amend the s.372 application to a s.365 application. 2

[4] I scheduled the extension of time and other matters for hearing on 22 October 2021.

[5] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. Mr Ferrara submits that he was dismissed, while the First Respondent contends that his decision not to return to Perth as instructed, saw him terminate his own employment. 3 Mr Ferrara relies on the correspondence from the First Respondent to him dated 12 May 2021 which he says constitutes the dismissal, and the First Respondent endeavours to back date the dismissal to 30 March 2021.

[6] Mr Ferrara’s application was made pursuant to s.365 of the Act, and this section requires that the application is made if the person is dismissed. Before I deal with the extension of time, I will first consider if the application was validly made pursuant to s.365 of the Act. This means that it will be necessary to determine if the termination of Mr Ferrara’s employment was a dismissal and the dismissal date, which are preliminary matters of importance before deciding an extension of time.

Preliminary matters for determination

Is the application an extension of an earlier application to be corrected?

[7] Mr Ferrara submits that he was informed of his dismissal on 13 May 2021, the day he received correspondence from the First Respondent. He also submits that the application is not out of time because he filed a general protections application not involving dismissal on 1 May 2021 (C2021/2488). He submits that this current application is an extension to the earlier application and “merely a correction of the first”. 4 He seeks an extension of time from the Commission on the basis of a connection between the two applications or that the first was made in error.

[8] Section 586 of the Act provides:

“586 Correcting and amending applications and documents etc.

The 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.”

[9] In the decision of Ioannnou v Northern Belting Services Pty Ltd, 5 the Full Bench dealt with a request to amend an application into another application. Relevantly, it said:

“[17] In our view, the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made. The amendment sought by the applicant requires a fundamental change to the kind of application originally made, by transforming an unfair dismissal application into an application under s.365, and might allow this to be done without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application.

[18] An unfair dismissal application under s.394 is fundamentally different to a general protections application under s.365, even though both may arise from the same set of circumstances involving the dismissal of an employee.”

[10] While the authority deals with a request to amend an unfair dismissal application into a general protection application, the principles are relevant to this matter. Mr Ferrara submits that his original application, a general protections application not involving dismissal could be amended to a general protection application involving dismissal. In my view, consistent with the provisions of s.586 of the Act and the Full Bench reasoning in Ioannou, it is not contemplated that Mr Ferrara’s request is an amendment or correction permitted under the Act. Firstly, the two applications are fundamentally different. Secondly, it is important to pay attention to the language of s.586. of the Act, it concerns applications or documents relating to a matter before the Commission. The initial application made by Mr Ferrara was made as an application that did not involve dismissal. The jurisdiction of the Commission is limited to conciliation. The application proceeded to conciliation, the matter was not resolved, and it was then closed on 18 May 2021, marked “dispute not resolved”. The application before me is a new application lodged with the Commission on 27 August 2021. There is no scope in my view within s.586 of the Act to resurrect and join a closed matter with a new application as if it is a correction or amendment.

Was Mr Ferrara dismissed?

[11] Section 365 of the Act deals with applications before the Commission and contains two limbs, one that there is a dismissal and secondly that the applicant alleges that the dismissal occurred because of a contravention of general protections. Relevantly the Act provides:

“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;

(c) the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[12] The term “dismissed” in s.365 of the Act is defined in s.386 of the of the Act. 6 A dismissal is to be at the initiative of the employer, or a person was forced to resign but a

dismissal does not include a range of situations (e.g. employment for a specified period of time or for a specified reason). The relevant extract from s.386 provides:

“Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) …

[13] Firstly, to make a general protections dismissal application the person must have been dismissed as defined by the Act. Before exercising its powers under s.368 of the Act, the Commission must be satisfied that the person was dismissed in fact. 7

[14] Mr Ferrara submits that the letter that he received on 13 May 2021 (dated 12 May 2021) dismissed his employment. However, the First Respondent submits that Mr Ferrara was employed as a casual and because he did not return to Perth as instructed on 30 March 2021, he terminated his own employment. 8

[15] Mr Ferrara also suggests that his employment was dismissed when he was required to leave the rig, but the dismissal by the First Respondent is based on the letter, and this is the date on which he relies for the extension of time. 9

[16] Mr Ferrara’s departure from the rig is not a dismissal by the Second Respondent, the employment relationship was with the First Respondent. Mr Ferrara tendered in evidence copies of emails and his recollection of telephone calls between himself and Angelique Slater the Executive Officer Corporate Services. Those communications do not support the contention that Mr Ferrara was dismissed or that he resigned. On 29 March 2021, he was contacted and advised that the client informed them that Mr Ferrara was to be removed from the rig and replaced by another medic. She further stated that she would organise work for him on his return from the rig. This is confirmed with an email on 29 March 2021, at 8:05PM. 10 Mr Ferrara states in his evidence that he was upset and hung up. However, in a further submitted email of 30 March 2021. he does concede that the reason he was removed was “It was only because I went out with a big bang and that final email to Mario, CEO etc that they got me off that rig as fast as I wanted to get off that thing.”11

[17] On 30 March 2021, after departure from the rig, further communication confirms that Mr Ferrara advised that he did not wish to be contacted for two weeks. This appears to have been accepted by the First Respondent. 12 I am satisfied that Mr Ferrara was not “dismissed” on 30 March 2021, nor did he terminate his own employment.

[18] The facts following 30 March 2021 relating to the question whether Mr Ferrara was dismissed are unclear. There was communication via email over April 2021, where Mr Ferrara informs the First Respondent of his expected medical clearance to work, and in relation to the disagreement over the circumstances of the placement he accepts some responsibility for his actions. The First Respondent also agreed to participate in a conciliation conference for the first application which took place on 18 May 2021. In relation to the letter of 12 May 2021, while stating that Mr Ferrara terminated his own employment when he arranged to travel to Melbourne rather than as directed to Perth, the letter provides insight into the prospect of any potential ongoing employment.

[19] The letter states that the purpose is to finalise employment matters in light of his continued emails and states:

“As your employment with us has ended and we do not intend to further utilise your services, you have now been removed from the Employment Hero system…” 13

[20] A casual employee is where they accept a job knowing there is no firm commitment to ongoing work with an agreed pattern of work and the employee accepts the offer. The contract of employment submitted by both Mr Ferrara and the First Respondent clearly states that the employment is casual, an hourly rate applies and the core hours and work days are “as per business requirements”. It is also not contested that the First Respondent is an RTO and labour hire employer. It is not contested that the First Respondent placed Mr Ferrara with the Second Respondent, but an employment relationship remained with the First Respondent.

[21] The evidence supports the conclusion that the employment offer does not provide any firm commitment to ongoing work or an agreed pattern of work. Mr Ferrara did not dispute the evidence contained in the Finalisation of employment matters letter where it states that he was engaged in a casual capacity as a labour hire paramedic on the offshore drilling platform for their client which was due to conclude in late April 2021.

[22] The period of employment came to an end when Mr Ferrara left the rig on 30 March 2021. The reason for this early termination of the assignment was because the client wanted to replace Mr Ferrara, which, based on the evidence, supports the contention that Mr Ferrara while initially unhappy with the client’s position, he was not altogether surprised and probably relieved to leave.

[23] Based on the evidence submitted which was not contested, the First Respondent informed Mr Ferrara that it was working on a prospective new placement and Mr Ferrara informed the First Respondent that he did not wish to be contacted. The period concerning the timeframe not to be contacted was contested, the evidence suggests the instruction was either for a period of two week, or for an unspecified time. In any event, Mr Ferrara did not return to work. 14

[24] There is no evidence that the First Respondent dismissed Mr Ferrara on 30 March 2021. A dismissal is where the employment is terminated at the employer’s initiative (s.386) and takes effect when it is communicated to the employee. The contract of employment states that hours of work are “as per business requirements”, there is no guarantee of hours nor guarantee of ongoing employment. Ordinarily a casual is employed per engagement or where the offer is made with a firm commitment to continuing and indefinite work on an agreed pattern of work. There is no evidence of an offer or acceptance on this basis nor further work performed by Mr Ferrara. Unless there is any evidence that there were further engagements, one can only conclude that the employment came to an end at the end of the engagement. I am not satisfied that the First Respondent “dismissed” Mr Ferrara.

[25] Due to the contest regarding facts and whether there was a dismissal, I have formed the view that because an objective assessment of whether there was a dismissal might not be conclusively decided, I will consider Mr Ferrara’s application for an extension of time.

[26] While I concluded the termination of employment occurred on 30 March 2021, even if I were to accept 13 May 2021 as the date of dismissal, the application is out of the statutory prescribed 21-day limit. The date of “dismissal” is important for the purpose of ascertaining the time to be considered for the extension of time. 15 For the period of 30 March 2021 to lodgement of 27 August 2021, the application is 129 days late.

Applicant’s submissions

[27] Mr Ferrara submits the Respondents contravened the general protection provisions of the Fair Work Act 2009 (the Act) in terms of:

•  S.340 Protection of Workplace Rights

•  S.343 Coercion in respect to Workplace Rights, and

•  S.351 Discrimination on the ground of disability.

[28] Mr Ferrara listed many examples of what he has determined are contraventions and without making any determination whether the list has merit, I list some of those examples:

•  The suspension of his duties and confining him to the hospital

•  Being spoken to about his poor performance

•  Disagreement whether Australian safety laws apply to the workplace

•  Being removed from the work site

•  Being “dismissed retrospectively” for when requesting a debriefing; and

•  Being dismissed for accessing workers compensation.

Respondent’s submissions

[29] The Respondents submit that Mr Ferrara’s application should be dismissed as it has no prospect of success on the grounds that:

•  He has failed to demonstrate exceptional circumstances that warrant an extension of time

•  That the considerations to be taken into account in accordance with s.366(2) of the Act do not warrant an extension of time.

Consideration

[30] General protections applications involving dismissal must be made within 21 days.

[31] However, s.366(2) of the Act 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.

[32] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 16 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 17

[33] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2) of the Act.

The reason for the delay

[34] The general protections involving dismissal application was lodged with the Commission on 27 August 2021, 129 days late.

[35] Mr Ferrara submits that the reasons for his delay, inter alia relate to:

•  His time devoted to study to adequately represent himself was on average 14-16 hours per day for four months,

•  Cost associated with preparing an application,

•  His study coincided with maintaining his coparenting responsibilities,

•  He submits that he has diagnosed with PTSD in 2016 and Attention Deficit Hyperactivity Disorder,

•  He also experienced battles on other fronts concerning his registration and for standing up for his values,

•  He states that delay was also caused when the Respondents’ representative failed to respond to his communications, and

•  He attended his GP on 20 June 2021 for stress related treatment.

[36] In support of his submissions, he tendered a medical certificate dated 25 June 2021 from his GP which states that Mr Ferrara advised that he was unable to work since 20 June 2021 due to stress from the work he did on an oil rig in March 2021. The certificate states that he should be fit to return to work on 6 July 2021. In addition, he submitted a certificate dated 25 November 2020 addressed to the Australian Health Practitioner Regulation Authority.

[37] The GP medical certificate does not relate to Mr Ferrara’s capacity to file an application, but nevertheless covers a period of 16 days of the delay. There was no other relevant medical evidence to support the delay.

[38] Applications before the Commission do not require legal representation nor any legal training. While the materials do show that Mr Ferrara had extensively researched the law, this level of commitment and invested time is not necessary, and I fear that his time in doing so is wasted. The Commission’s website is designed in such a way for unrepresented parties to quickly access information in order to file an application. Much effort has been made to design the website for lay people. In fact, the data shows a significant proportion of applicants are self-represented and can navigate through the website information and file material in support of their application. In addition, the website refers self-represented parties to the Workplace Advisory Service, a free service to access initial legal advice.

[39] Extension of time applications set a high bar, therefore the entire period of delay must be explained with credible reasons. 18 Evidence to support the credible the reasons will be expected. Further the reasons for the delay are to be exceptional.

[40] The authority with respect to exceptional circumstances is well understood: “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.” 19 Time taken to prepare an application or to research prior to making the application is not considered exceptional, having coparenting responsibilities is also not exceptional. However, medical circumstances may be considered exceptional, where the medical evidence in support of the application verifies that the applicant was incapacitated to make an application. This is not the case here. Further delays because the other side did not respond, is not considered exceptional. The applicant bears the onus to make the application and any suggested lack of awareness of one’s responsibilities or rights is not sufficient to meet the test of exceptional.

[41] Having regard to the submissions and evidence, I am not satisfied that Mr Ferrara has demonstrated credible reasons regarding this consideration. I do not consider the reasons given for the delay weigh in his favour.

Steps taken to dispute the termination

[42] It is not in contention that Mr Ferrara challenged the decision to remove him from the rig in March 2021. I understand it is not in contention that the Respondents have been on notice that Mr Ferrara would pursue legal action. On this consideration I do consider it weighs in Mr Ferrara’s favour.

Prejudice to the employer

[43] Mr Ferrara submits that granting an extension of time will not cause the Respondents any disadvantage or unfairness.

[44] The Respondents submit that this consideration should not be considered lightly due to the inconvenience already experienced and the extraordinarily late application. I note that Mr Ferrara continues to press a claim against both his former employer and its client, and this is time consuming and costly. However, even if I should find that there is no sufficient prejudice to the Respondents an absence of prejudice is insufficient reason to grant an extension.

[45] This consideration does not weigh in favour of an extension.

Merits of the application

[46] Mr Ferrara submits that his experience while on the rig and subsequent to his removal, there has been a contravention of the general protection provisions. Largely these contraventions relate to his concerns about safety and work procedures on the rig. He states that he raised these concerns both with the Second Respondent and the First. He submits that he felt the Second Respondent was displeased by his behaviour and a series of events took place which resulted in his locking himself in the hospital and subsequently being removed from the work site.

[47] The Respondents submit that Mr Ferrara was employed as a casual, and his decision not to return to Perth as instructed, saw him terminate his own employment. They submit that an extension of time is not the forum to test merit.

[48] The factual evidence concerning whether Mr Ferrara had a workplace right and having exercised that right, that it led to adverse action was not tested. It is apparent that the factual detail concerning merit will be strongly contested. In such extension of time matters, it is not appropriate to hear the evidence to test the merit, although the Commission does have discretion to form a view whether the applicant has a sufficient case for consideration in favour of an extension of time. 20

[49] On the evidence before me I cannot conclude that there is no merit, nor can I conclude that Mr Ferrara has a strong, meritorious application against the First Respondent. Whether he has a meritorious case against the Second Respondent is not a consideration in this matter as a s.365 application concerns a general protections dispute involving a dismissal. The Second Respondent could not dismiss Mr Ferrara as a dismissal can only occur where there is an employee and employer relationship. I accept that Mr Ferrara argues that the relationship with the Second Respondent also constituted an employment relationship cloaked as a contract relationship between the two Respondents, but for the purposes of this matter, I do accept that the First Respondent was the employer and not the Second.

[50] In relation to merit, I have not tested the evidence and it is not my position to do so in an extension of time application. 21 The First Respondent submits there was no dismissal, and as I earlier found, I agree that the evidence does not point to a dismissal. If there was no dismissal, what was the adverse action by the First Respondent? I gather from Mr Ferrara’s submissions that he was not protected to be kept on the rig and ultimately not offered further employment. The exact nature of his argument remains unclear, and the evidence has not shed sufficient light on whether a view can be formed that there is a meritorious claim.

[51] Having considered the submissions and evidence, on the balance of probabilities, I do not consider that Mr Ferrara has satisfied this consideration.

Fairness between the person and other persons in a like position

[52] Neither party were in a position to identify any other person(s) in a similar position therefore this consideration is irrelevant.

Conclusion

[53] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

[54] On balance, in terms of all of the considerations in an extension of time application, the circumstances do not weigh in favour of Mr Ferrara. Also relevant is the serious question whether Mr Ferrara was dismissed, which is a criterion for an entitlement pursuant to s.365.

[55] Having considered all of the evidence and submissions against s.365 and each of the factors set out in s.366(2), I am not satisfied that the application is valid and further there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Mr R.S. Ferrara for himself

Mr M. Baldwin for the Respondent

Hearing details:

2021
Melbourne (by telephone)
22 October

Printed by authority of the Commonwealth Government Printer

<PR736475>

 1   Respondents’ outline of submissions at Annexure A.

 2   Applicant’s Annexure A at [16] to Amended form F8.

 3 Respondents’ outline of submissions at [17].

 4   Applicant’s outline of submissions at [17] – [21].

 5   [2014] FWCFB 6660.

 6   See Part 1-2 – Definitions in s.12 of the Fair Work Act 2009.

 7   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].

 8   Respondents’ outline of submissions at [17] and Annexure B.

 9   Page 217 of the Court Book.

 10   Page 172 of the Court Book.

 11   Applicant’s response to finalisation letter page 174 and 226 of the Court Book.

 12   Email of 30 March 2021 at 10:03AM and email responses from Peet Thom and Angelique Slater, see page 226 of the Court Book.

 13   Annexure B of the Respondents’ outline of submissions.

 14   Annexure B of the Respondents’ outline of submissions.

 15   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [57].

 16   [2011] FWAFB 975.

 17 Ibid at [13].

 18   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 19   Nulty v Blue Sar Group Pty Ltd[2011] FWAFB 975.

 20   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300; Kyvelos v Champion Socks Pty Ltd, Print T2421 AIRCFB, (10 November 2000) at [14].

 21   Miller v DPV Health Ltd [2019] FWC 3979.