Rick McPherson v Mbabaram Aboriginal Corporation T/A Mbabaram Aboriginal Corporation
[2018] FWC 852
•8 FEBRUARY 2018
| [2018] FWC 852 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Rick McPherson
v
Mbabaram Aboriginal Corporation T/A Mbabaram Aboriginal Corporation
(C2017/4077)
COMMISSIONER RIORDAN | SYDNEY, 8 FEBRUARY 2018 |
Application to deal with contraventions involving dismissal – extension of time application.
[1] Mr Rick McPherson (the Applicant) was originally employed by Watsonville Land Corporation (WLC) as a Land Manager. This role required the Applicant to perform land management and cultural heritage work on the Mbabaram Mt Emerald Project (the Project). The Respondent (Mbabaram Aboriginal Corporation) entered into a cultural heritage management contract with RATCH – Australia for this project in mid February 2017. The Respondent engaged WLC to perform this role.
[2] In late March 2017, the relationship between WLC and RATCH deteriorated to the point that the Respondent assumed the role of WLC. The Applicant was employed by the Respondent as the Land Manager for the Project on 31 March 2017. The Respondent claims that the Applicant was employed as a casual. The Applicant disputes this assertion.
[3] Leave was granted in accordance with section 596(2)(a) to allow the Respondent to be represented by Ms Annie Smeaton from Cooper Grace Ward Lawyers on the basis that legal representation would allow the matter to be dealt with more efficiently due to the complexity of the matter.
[4] On 1 May 2017, RATCH advised the Respondent that it will not be releasing any further funds for the Project on the basis that the Respondent was not properly insured to undertake the work that it was performing. At a meeting on 10 May 2017, the Board of the Respondent decided to cease work on the project from 12 May 2017 and issued a “Stop Work Notice” in the following terms:
“NOTICE
Land Managers
Following the Board of Directors meeting on Wednesday 10th May 2017, the Board had made the decision to cease work effective as of Friday 12th May, 2017.
The decision to take this action was based on an email received from Tom Mitchell, RATCH, notifying the Board on the 1st Mat 2017 they will not be releasing any more funds because their finance team is aware that the supplier, Mbabaram Aboriginal Corporation (MAC), does not hold the requisite insurances under the contract.
• On-site work will recommence at a time to be advised but only when necessary insurances are in place.
• In the future, MAC Board will define the various roles associated with the project, including that of Land Managers.
Onsite work will recommence at a time to be advised but only when necessary insurances are in place. In the future, MAC Board will define the various roles associated with the project, including that of Land Managers.
The board also requires both vehicle’s to be returned to the Corporation as of Friday the 12th May 2017.
Mbabaram Aboriginal Corporation RNTBC
Shelton Murphy
Chairperson”
[5] Throughout the Applicant’s employment the Respondent paid the required SGL contribution to the Applicant’s nominated superannuation account and withheld $3,352.00 for PAYG tax.
[6] The Respondent alleges that on 5 June 2017, a member of the Respondent’s Board and a friend of the Applicant, requested that the Chairman of the Respondent’s Board modify the employment status of the Applicant and his colleagues from employee to independant contractor. The Chairman was also asked to reimburse these former employees the PAYG tax deduction that had been collected from them by the Respondent. This payment was made to the Applicant on 8 June 2017.
[7] The Respondent submitted that the Applicant knew that his employment had been terminated on 12 May 2017. Further, that if this date is not accepted by the Applicant, then the actions taken by his friend on 5 June 2017, certainly indicate that the employment relationship was at an end at this point in time. In either scenario, the Respondent argued, the Applicant’s general protection application has been submitted outside the 21 day statutory timeframe.
Legislative Provisions
[8] The relevant provisions of the Fair Work Act 2009 (the Act) are:
Section 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.
Section 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.
[9] 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.”
[10] I now turn to the consideration of the matters set out in section 366(2) of the Act to determine whether an extension of time should be granted.
Section 366(2)(a) reason for the delay
[11] The Applicant has claimed that he did not know that he had been terminated on the basis that he had not received a formal letter of termination. The Applicant claims that he was told that he would be back on the job within 2-4 weeks. He claims that he attempted to contact the Respondent but that they would not answer or respond to any phone calls, emails or text messages.
[12] The Respondent submitted that the Applicant was a casual employee and was therefore a daily hire employee. As such, the stop work notice that was given to the Applicant on 10 May 2017, giving him 2 days’ notice, satisfies any notice requirement.
[13] The Respondent argued that no promises had been made to the Applicant, or his colleagues, however, one of the Applicant’s colleagues has subsequently been engaged. The Respondent stated that, unfortunately, there is not sufficient work to re-employ any additional land managers.
[14] The Respondent also advised that, as directed, the Applicant returned the Respondent’s work equipment on 12 May 2017. I accept the submission that this action identifies that the Applicant received the stop work notice that was issued on 10 May 2017.
[15] Further, the Respondent argued that even if the Applicant was unaware of his termination on 12 May 2017, the fact that he asked his colleague to arrange the re-imbursement of his PAYG tax on 5 June 2017, is an action of a person who knows that the employment relationship has come to an end. The Respondent submitted that, assuming the latter date is the actual date of termination, then the Applicant’s application is 28 days out of time.
[16] I am of the view that the Applicant was aware that his employment relationship with the Respondent had come to an end on 12 May 2017. If that was not the case, then the Applicant was certainly aware by 5 June 2017. By 5 June 2017, the Applicant had no prospects of re-employment on the basis that he had become an independent contractor (although I have no evidence if any GST was charged or paid). I have taken this into account.
Section 366(2)(b) action taken to dispute dismissal
[17] The Applicant claims that he was constantly contacting the Respondent in relation to when he was due to start again on the project but was of the opinion that he was being ignored. The Respondent denies ignoring the Applicant.
[18] I am not satisfied that the Applicant, by asking when he was going to be returning to the job, was actually disputing his dismissal. I have taken this into account.
Section 366(2)(c) prejudice to the employer
[19] The Respondent has submitted that the Respondent is a small operation and the defence of this application will impose an unfair burden on the Respondent.
[20] I am not satisfied that the Respondent will suffer any prejudice if an extension of time is granted. The costs associated with defending the Applicant’s application would be exactly the same if the application had been lodged inside the statutory timeframe. I have taken this into account.
Section 366(2)(d) merits of the application
[21] In Kornicki v Telstra-Network Technology Group2 the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission held:
“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.”3
[22] It was held in Kyvelos v Champion Sock Pty Ltd4, that the Commission cannot make any finding on contested matters without hearing evidence, which is typically not called at this stage of the proceedings. The Full Bench went on to say that:
“The Commission should not embark on a detailed consideration of the substantive case.”5
[23] However, during the Hearing, the Applicant conceded that if either he or the Respondent could produce pay slips which showed that he was a casual employee then he would have no case. The Respondent produced payslips which clearly showed that:
a) the Applicant was paid a daily rate of $660;
b) the Applicant did not regularly work a 5 day week;
c) the Applicant did not accrue any annual leave or personal leave during his employment; and
d) the Applicant was reimbursed his PAYG tax contributions on 8 June 2017.
[24] Despite the Respondent providing this payroll information, the Applicant still sought to continue with his application and has submitted a note from the Project Officer of the Project advising that the Applicant’s role was full time.
[25] I also note that the Applicant’s actions in being paid back his PAYG tax instalments fundamentally changes the contractual employment relationship between the parties. The Applicant advised that he now has an ABN. However, whilst it is contested as to who initiated this relationship change, the Applicant does not appear to have objected to its introduction as seen by the acceptance of his PAYG tax reimbursement.
[26] I am satisfied that the Applicant was a casual employee. Whilst the payslip evidence shows that the Applicant was not working as a full time employee, being a full time employee does not mean that the employee cannot also be a casual employee. The Applicant’s payslips showed an excessively high daily rate, which converts to approximately $85 per hour. Whilst they do not show the provision of any casual loading having been paid, they clearly show that the Applicant was not accruing any annual or personnel leave. I have taken this into account.
Section 366(2)(e) fairness between the person and others in a position similar
[27] Whilst the Applicant has two colleagues who were terminated in similar circumstances, I am not aware if either has submitted an application of any description to the Commission.
Conclusion
[28] I have taken into account all of the submissions and evidence that has been provided by the parties. I note, due to the location of the Applicant and Respondent, it was difficult to establish and maintain regular communication.
[29] The Applicant’s employment was casual by nature and by payment. The Applicant did not work a regular or systematic 5 day week. Unlike full time employees, the Applicant did not accrue any annual or personal leave.
[30] Whilst the Stop Work Notice does not identify the Applicant by name it clearly states that all work is to stop on 12 May 2017. I note that in accordance with the Notice, the Applicant stopped work on 12 May 2017 and returned his vehicle. It also states that work will recommence at a time to be advised. Relevantly, it also states that the role of Land Manager is open for review. As a result, there were no guarantees of future engagement. Subsequently, the 4 Land Managers appear to have become independent contractors.
[31] I find that the Applicant was a casual employee and was terminated on 12 May 2017 by way of the stop work notice. The Applicant’s application is 52 days outside the statutory time limit.
[32] I am satisfied, for the reasons stated above, that the Applicant’s situation was not out of the ordinary course, unusual or special.
[33] Based on the obiter in Nulty, I decline to extend the time to allow the Applicant to lodge his application.
[34] As a result, the Applicant’s general protections application is dismissed.
[35] I so Order.
COMMISSIONER
<PR600251>
1 [2011] 203 IR 1
2 Print P3168, 22 July 1197 per Ross VP, Watson SDP and Gay C
3 Ibid
4 Print T2421
5 Ibid at [14]
Printed by authority of the Commonwealth Government Printer
0
0
0