Rodrigo Garcia Orjuela v Toll Personnel Pty Ltd T/A Toll People
[2016] FWC 4433
•5 JULY 2016
| [2016] FWC 4433 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Rodrigo Garcia Orjuela
v
Toll Personnel Pty Ltd T/A Toll People
(U2016/5551)
COMMISSIONER WILSON | MELBOURNE, 5 JULY 2016 |
Application for relief from unfair dismissal – whether dismissal at initiative of employer – whether minimum employment period served - whether extension of time should be granted.
[1] This matter concerns an application made by Rodrigo Garcia Orjuela, referred to hereafter as Mr Garcia, alleging unfair dismissal against his former employer, Toll Personnel Pty Ltd, trading as Toll People. Mr Garcia’s application to the Fair Work Commission was first received in the Fair Work Commission on 21 March 2016. His application asserts that the date upon which his dismissal took effect was 15 March 2016, noting that this date is three months after the last date on which he was offered work.
[2] Toll People submit that Mr Garcia has not been dismissed and has not completed the minimum employment period applicable to him. Those matters are dealt with further in this decision. Toll People’s alternative submission is that, if Mr Garcia “had been dismissed, the dismissal would have taken effect on 15 December 2015”, being the last day on which the Applicant performed work for Toll People. Its argument in that eventuality is that Mr Garcia’s application was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.
[3] If Mr Garcia has not been dismissed within the meaning of s.386 of the Fair Work Act 2009 (the Act), his application will not be able to proceed.
[4] In the alternative, if he has been dismissed, s.394(2) of the Act requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). If Mr Garcia is correct about the date upon which his dismissal took effect, then his application is within time. However, if Toll People’s alternative argument is correct, then his application is 76 days out of time.
[5] In this decision, I have considered whether Mr Garcia has been dismissed, and if so, whether an extension of time should be granted for the making of his application. For the reasons set out below, I am satisfied that Mr Garcia was dismissed on 15 December 2015 and I am also satisfied that a further period should be allowed to him for the making of an unfair dismissal application.
[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Mr Garcia, the Applicant, and Marilyn Mackenzie, a Toll People Account Manager and Rehabilitation/Return to Work Coordinator, and material received from each party after the hearing following a request on my part for further information.
BACKGROUND
[7] The Applicant has worked for Toll People on multiple occasions since August 2012. He puts forward that he has been continuously employed for some time, whereas the Respondent puts forward that he is a casual employee who has not had regular and systematic employment with the company. The Respondent in this regard identifies three ranges of employment; the first being a period in which he was employed “intermittently” between August and November 2012; the second being “sporadic casual employment” between February and August 2014; and the third being “another episode of irregular casual employment commencing on 1 March 2015”. 1
[8] The evidence discloses that, within those ranges of employment, the Applicant made himself available for employment with Toll People and that he would be offered work at various sites for which the company had a contract to provide services. The evidence indicates that most, if not all, of those periods of work were in the nature of the provision of a labour hire type service by Toll People to other businesses mainly or entirely within the Toll Group.
[9] The Applicant puts forward that he was “an active employee” of Toll People until 16 December 2015, being the day after he sustained a work-related injury. Mr Garcia’s application puts forward that he communicated with Ms Mackenzie about the injury, including his intention to make a workers compensation claim relating to the injury. Ms Mackenzie’s witness statement is more extensive in its detail on the subject, but confirms there were exchanges between her and the Applicant about these matters between 16 December 2015 and 18 December 2015, when she proceeded on leave.
[10] The evidence allows a finding, which I make, that the Applicant has not performed work for Toll People since 15 December 2015.
[11] The matters for determination in this decision involve two of the four initial matters provided for in s.396 of the Act, namely whether the application has been made within time and whether the Applicant is a person protected from unfair dismissal. The other two initial matters, of whether the dismissal was consistent with the Small Business Fair Dismissal Code or whether it was a genuine redundancy, are not questions that arise in this matter.
CONSIDERATION
WHETHER DISMISSED AND WHETHER MINIMUM EMPLOYMENT PERIOD SERVED
[12] An employee is dismissed if the employee has been terminated on the employer’s initiative. 2
[13] The argument put by Mr Garcia is that he has not been provided with work by Toll People since 15 December 2015 and that such circumstance amounts to a termination on the employer’s initiative. Toll People put firstly that Mr Garcia has no ongoing expectation of employment and that in any event there has been no work to offer him, with him remaining an “active employee”.
[14] It is argued in effect that when he completed his contract period of employment on 15 December 2015, Mr Garcia had no reasonable expectation of continuing employment. When none was offered, that situation was entirely consistent with the contractual arrangements between the Applicant and Toll People.
[15] This contention, together with the one that he had not served the minimum employment period, requires an examination of whether Mr Garcia had regular and systematic employment with Toll People, together with a reasonable expectation of continuing employment.
[16] The Commission’s approach in these matters is well settled.
[17] Although, as a matter of contract, each occasion a casual employee is engaged is a separate contract of employment, 3 the task in matters such as this is to examine the period of service rather than the period of employment.4 If it can be said that employment was on a regular and systematic basis and there was a reasonable expectation of continuing employment on a regular and systematic basis then a period of service by a casual employee will count towards the period of continuous service.5 After that point, continuous service will only be broken by one party making it clear to the other party that there will be no further engagements.6
[18] It follows as well that, if an employee had a reasonable expectation of continuing employment, a situation in which further work was not offered would be a termination at the employer’s initiative.
[19] In assessing whether employment was on a regular and systematic basis the Commission looks for the engagement to have been regular and systematic, not the hours worked pursuant to that engagement. 7 A clear pattern or roster of hours may be strong evidence of regular and systematic employment. While the term ‘regular’ implies a repetitive pattern, it does not mean frequent, often, uniform or constant.8 The term ‘systematic’ requires that the engagement be “something that could fairly be called a system, method or plan”.9
[20] The evidence before me shows that Mr Garcia was continuously employed between the weeks ending 12 June 2015 and 15 December 2015. The evidence before me about the periods of work prior to the week ending 12 June 2015 shows that those periods are unlikely to be periods of continuing employment. In most weeks after 12 June 2015, Mr Garcia performed work for Toll People until his last day of employment on 15 December 2015.
[21] On the Respondent’s submissions there are 4 weeks within the period of the week ending 12 June 2015 and 15 December 2015 in which there was no work performed for them by Mr Garcia. I do not consider those periods to take away from the overall connection between what are otherwise contiguous periods of work.
[22] While there demonstrably was not a clear pattern or roster of hours, there was certainly a repetitive pattern. In Mr Garcia’s case, that pattern was an expectation of being offered and accepting work of 10 or 15, and in some cases more, hours of work. That repetitive pattern is capable of being described as a system, method or plan. He was a worker known for being available for certain days or shifts, to a certain quantity of hours, and the mutual system of work was that he would usually be asked to work for some time in each week.
[23] To not be asked to work for three whole months runs counter to that repetitive system and pattern and is not explained either by the Respondent’s generalised submissions that, since December 2015, there has been diminished “client demand”, 10 or by its claim that, despite everything, Mr Garcia remains an “active employee” and that it is not “uncommon for casual candidates engaged by Toll People not to be offered work for extended periods of time”.11 Insufficient evidence has been brought forward by Toll People on these matters, and I place no weight on these contentions.
[24] In all, the evidence points to Mr Garcia having been dismissed on the employer’s initiative. No cogent evidence is offered to explain why he had been working regularly each week prior to 15 December 2015 and that no work has been offered since. Mr Garcia supposes that this circumstance arises because of his claim for compensation in relation to what he claims to be a compensable work-related injury. He also suspects it may have come about because he was having an insufficient break between shifts worked with another employer and shifts worked with them.
[25] In any case, the evidence shows that, more likely than not, Mr Garcia was not offered work after 15 December 2015 because of decisions made by Toll People, whether those reasons were diminished client demand or factors relating to Mr Garcia’s circumstances.
[26] I find therefore both that Mr Garcia was dismissed on the employer’s initiative, and that the date on which the dismissal took effect was 15 December 2015. I also find that Mr Garcia had served the minimum employment period of 6 months. He was therefore a person protected from unfair dismissal at the time he was dismissed.
WHETHER AN EXTENSION OF TIME SHOULD BE GRANTED
[27] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 12 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.13
[28] In considering whether an extension of time should be granted to Mr Garcia, I am required to consider all of the criteria in s.394, which I now do.
1. The reason for the delay
[29] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 14 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.15 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.16
[30] The Applicant puts forward that his knowledge of Toll People’s employment policies was that if he had not performed work for them for a period of three months then his employment would be regarded as being at an end. He says that prior to 15 December 2015 he had been requested to work at least twice a week by Toll People. Those requests were made either by a direct phone call or through a group text message not only to him but also to other persons who may be interested in undertaking work for Toll People. However after 15 December 2015 none of those things occurred. He was not offered work through a direct telephone call and he was not sent the group text that he previously had received. Mr Garcia’s evidence also includes that he endeavoured to speak with company representatives about when he would be placed back on rosters or offered work, but had no decisive indications about these matters. His evidence also includes that during the three months after 15 December 2015 he had periodically and repeatedly asked about his employment status and was assured he remained “an active employee but there are no shifts available at the moment”. 17 No one ever told him that he had been dismissed.
[31] In relation to these matters the Applicant’s evidence includes;
“On 15/12/2015 I suffered an accident caused by a faulty machine. This is the last shift that I worked for TOLL PEOPLE.
Reason for the Delay:
− During the following three months after I had the accident, I contacted Toll People in several opportunities trying to find out why I was not longer being requested to work, they always said it was quiet at the moment and they will call me soon (understandable for the week after Christmas and the first weeks of January). They never called back.
− Toll People states that I have not been dismissed and I am an active employee, however they have not provided me with a single request for working since the 15th of December 2015.
− Previously when I had stopped working for this company, I had been requested to fill up new paper work as they said employees go out of their books after 3 months of inactivity. For this reason my application was lodged on the 21st of March 2016, after three months of inactivity. I believe this was done within three weeks after been removed from their books.” 18
[32] The Applicant links his injury and his subsequent workers compensation claim with a decision by Toll People to no longer offer him work. 19
[33] For its part Toll People put forward that two factors led to him not being offered work. The first was that it became apparent to the company in December that the Applicant was having an insufficient break between work performed for another employer and shifts that he was working on behalf of Toll People and that the Respondent then made it clear to the Applicant that such was a breach of its policies. The second reason put forward, without sufficient supporting evidence on the subject, is that the company has had diminished client demand for its services since December 2015. 20
[34] The Applicant is adamant that the reason for the delay in making his application is that he was under the apprehension that, being a casual employee, termination of his services would be deemed to occur if he went longer than three months without being recalled for work.
[35] The company strongly disputes that any such policy exists and the Applicant was unable to point to any such documented policy. However, I am prepared to accept that the Applicant’s misapprehension about the existence or application of such a policy was the reason for the delay in making his application for unfair dismissal.
[36] In the circumstances in which Toll People put forward adamantly that the Applicant has not been dismissed at any stage and in which it has never communicated a termination to him, and which it seeks to continue even within these proceedings to argue that there has never been a dismissal, it is hardly surprising that an applicant such as Mr Garcia has only his faulty misapprehension about his employment coming to an end after three months of not working upon which to rely as being the point at which he believed termination to have occurred. I find that in the circumstances that is an acceptable reason for the delay in making an unfair dismissal application.
[37] At no point earlier did Mr Garcia have any intimation, whether written or verbal from Toll People that his employment was at an end. All he had to rely upon was the end of the three month period which he understood to be the outer limit of the period for which he would be retained before being terminated.
[38] That period having come and gone Mr Garcia commenced his unfair dismissal application with an application received in the Fair Work Commission on 21 March 2016, being within a week of the date on which he presumed he had been terminated.
[39] While that date and that presumption may be wrong in law, they combine to form an acceptable reason for the delay in Mr Garcia making his unfair dismissal application to the Commission.
[40] Accordingly, consideration of this criterion resolves in Mr Garcia’s favour for my consideration of whether an extension of time for filing should be granted.
2. Whether the person first became aware of the dismissal after it had taken effect
[41] The circumstances referred to above make it clear that Mr Garcia only became aware of his dismissal after it had taken effect. At the time that he made the application, and even in the course of the hearing of the matter, it was contested by Toll People as to whether there even was a dismissal. Mr Garcia's evidence includes that he repeatedly queried with officers of Toll People whether he would be offered further work and that he was consistently told that he was still an active employee. That contention by Toll People is maintained in Ms Mackenzie’s witness statement. 21
3. Any action taken by the person to dispute the dismissal
[42] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 22
[43] I take into account in my consideration of this criterion the matter referred to above that Mr Garcia has repeatedly questioned Toll People about his employment status, being repeatedly assured that he was and is a current/active employee. 23 However other than the making of these enquiries and the commencement of this unfair dismissal application it appears that Mr Garcia has not taken other action to dispute his dismissal.
[44] Overall, my consideration of this criterion is that it is a neutral factor in my overall decision.
4. Prejudice to the employer (including prejudice caused by the delay)
[45] Given my finding that the date upon which Mr Garcia’s dismissal took effect was 15 December 2015, the delay in the filing of the application is 76 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.
[46] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 24
[47] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.
5. The merits of the application
[48] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
[49] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 25
[50] Ultimately Mr Garcia’s application is put forward on the basis that he believes “they stopped calling and requesting me through SMS after I was injured at work by a faulty machine”. 26 At this time no evidence other than Mr Garcia's belief is offered in respect of this contention. Toll People strenuously resist the construction put forward by Mr Garcia, instead putting forward that he has not been offered work as a combination of his own circumstances in working at another employer then taking insufficient breaks before working for Toll People, as well as what it puts forward as being diminished client demand.27
[51] As a result I am unable to determine an informed view about the merits of Mr Garcia’s application.
[52] Overall, my consideration of this criterion is that it is a neutral factor in my overall decision
6. Fairness as between the person and other persons in a similar position
[53] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 28
[54] I consider that Mr Garcia’s circumstances are such that consideration of general principles of fairness would result in his favour. That is I consider a reasonable person would expect that in the event an employer did not call an employee back to work and at all stages throughout a three month period denied that the person had been dismissed, it would be fair to an applicant to allow an unfair dismissal application to proceed provided it was commenced in a timely manner, consistent with the employee’s understanding of his former employer’s policies.
[55] After consideration of the whole the material before me and the legislative criteria, I am satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Garcia.
[56] For these reasons, I grant an extension of time pursuant to s.394 of the Fair Work Act 2009 and will issue an order that the time for Mr Garcia to file his unfair dismissal application made pursuant to s.394 of the Act be extended until 21 March 2016.
[57] An order to that effect is issued by me at the same time as the publication of this decision.
COMMISSIONER
Appearances:
Mr R Garcia-Orjuela on his own behalf.
Ms K De Lange on behalf of the Respondent.
Hearing details:
2016.
Melbourne (by telephone):
16 June.
Final written submissions:
Applicant: 26 June 2016.
Respondent: 22 and 24 June 2016.
1 Form F3 - Employer Response Form, item 1.2.
2 Fair Work Act 2009 (Cth) s 386(1).
3 Shortland v Smiths Snackfood Co Ltd, [2010] FWAFB 5709, (2010) 198 IR 237, at [10].
4 Ibid [12].
5 Ibid.
6 Ibid [13].
7 Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, (2006) 149 IR 339, at [65].
8 Ibid [68].
9 Ibid [91].
10 Exhibit R1, Respondent’s Outline of Submissions, [26].
11 Exhibit R2, Witness Statement of Marilyn Mackenzie, [22]-[23].
12 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
13 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9].
14 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
15 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.
16 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.
17 Form F2 – Unfair Dismissal Application, item 3.2.
18 Exhibit A1, Applicant’s email to Drake SDP 16 May 2016.
19 Form F2, items 3.1 and 3.2.
20 Exhibit R1 [26].
21 Exhibit R2 [22].
22 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
23 Exhibit R2 [22].
24 Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].
25 Haining v Deputy President Drake (1998) 87 FCR 248, 250.
26 Form F2, item 1.2.
27 Exhibit R1 [26].
28 Wilson v Woolworths [2010] FWA 2480 [24]‒[29].
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