Sean Fogarty v Gett Asia Ltd

[2018] FWC 7756

[2018] FWC 7756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sean Fogarty
v
GETT Asia Ltd; GETT Gerätetechnik GmbH
(C2018/1900)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 20 DECEMBER 2018

Application to deal with contraventions involving dismissal – s.596 of the Fair Work Act 2009 – application for an order for production of documents – application for a confidentiality order– effective date of dismissal – whether to extend time for lodging the application.

[1] On 10 April 2018, Mr Sean Fogarty (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). Mr Fogarty lodged the application naming both himself and his business, Lion Global Pty Ltd (Lion Global), as the Applicant. The Respondents to the application were named as GETT Asia Ltd (the First Respondent) and GETT Gerätetechnik GmbH (the Second Respondent) (together the Respondents).

[2] Mr Fogarty commenced working with the Respondents on or around October 2015. Mr Fogarty submits that he was employed by the Respondents pursuant to a sham contract. He says that he was dismissed on 20 March 2018 and the dismissal took effect on that day, or alternately on 21 March 2018, therefore his application was lodged within time.

[3] The Second Respondent submits that they entered into a contract with Mr Fogarty’s company, Lion Global Pty Ltd, as an independent contractor for the promotion of their products. They submit that Mr Fogarty was advised on 14 December 2017 that the contract was terminated in accordance with clause 9.2 of said contract and provided him with six weeks’ notice. They submit that on 31 January 2018 the contract came to an end, and therefore Mr Fogarty’s application was lodged 48 days out of time.

[4] For ease of reference, I will refer in this decision to Mr Fogarty’s ‘employment’ and his ‘dismissal’, however for the purposes of this decision I will not be making a determination as to whether Mr Fogarty was an employee or whether he was dismissed. The Commission is not required to make a determination that an Applicant has been dismissed before holding a conference or issuing a certificate under section 368 of the Act. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1. 1

[5] Mr Fogarty was self-represented. The Respondent was represented by Mr Michael Kobras of Schweizer Kobras.

[6] For the reasons set out below I have concluded that Mr Fogarty’s dismissal took effect on 31 January 2018. I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Alleged Contravention

[7] Mr Fogarty submits that he was dismissed because he was owed money by the Respondents and he was engaged under a sham contract. A breach of sections 340, 343, 344, and 358 is alleged. 2

[8] The Second Respondent submitted that they had engaged Mr Fogarty’s company, Lion Global Pty Ltd, pursuant to a contract and had terminated said contract in accordance with the terms within it. The First Respondent submitted that, subsequent to the contract termination, they had conducted negotiations about the potential future cooperation with Mr Fogarty however those negotiations failed and an agreement was not reached. 3

Procedural background

[9] On 28 June 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered. In a mention/directions hearing on 6 July 2018 the parties were again advised the Commission would be considering the extension of time issue and the factors that I am required to take into account in considering the application. Directions were initially issued for Mr Fogarty to file witness statements and submissions as to whether the Commission should grant a further time for lodgement pursuant to s.366(2) of the Act by 12 July 2018. The Respondents were to file their materials by 26 July 2018. The matter was listed for a hearing on 15 August 2018.

[10] On 6 July 2018 Mr Fogarty requested the directions be amended to allow a further period of time to enable him to file his materials in support of his application. Mr Fogarty’s request was granted and amended directions were issued.

Preliminary Matters

[11] After the filing of his initial Application Mr Fogarty filed a Form F1 application to amend his s.365 application and a Form F51 application for an order for the production of documents. After the hearing Mr Fogarty sought a confidentiality order. Directions were issued by my Chambers for the filing of submissions. Each of these matters have been dealt with separately below.

Mr Fogarty’s Form F1 Application

[12] On 6 June 2018, Mr Fogarty lodged a Form F1 application seeking to amend both his own details and the Respondents named in the Application. Mr Fogarty had named the Applicant to his application as “Mr Sean Fogarty (Lion Global Pty Ltd)” and sought to amend this to “Mr Sean Fogarty”. Mr Fogarty submitted he had received advice that he should amend his application. I considered that it was appropriate to amend Mr Fogarty’s application in this regard.

[13] Mr Fogarty’s initiating application also named GETT Asia Ltd once and GETT Gerätetechnik GmbH thrice. Mr Fogarty submitted in his Form F1 that it was his intention to name the Respondents to his application as follows:

“Respondent 1. GETT Asia Ltd

Respondent 2. ADAM WONG ( Managing Director of GETT Asia Ltd)

Respondent 3. GETT Gerätetechnik GmbH

Respondent 4. PIERRE BEER ( CEO and owner )

Respondent 5. STEVE MOECKEL ( CEO and owner )

Respondent 6. TINO PIETZSCH ( CEO and owner )”

[14] The Act provides the Commission with a broad discretion to correct or amend an application “on any terms that it considers appropriate”. The issue to be determined in this instance is whether the Commission should exercise its discretion in the current circumstances. Section 586 provides that:

“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.”

[15] The existing authorities state the power under s.586 for the Commission to amend an application is discretionary. The decision in Djula v Centurion Transport Co. Pty Ltd 4(Djula) is authority for the principle that each application to amend the name of a respondent needs to be determined having regard to the particular facts of the matter. The Full Bench in Djula stated as follows:

“[34] Finally, we emphasise that it was the peculiar facts in this case which, in our opinion, justified the grant of the application to amend the name of the respondent. The facts in other matters may not be comparable. In such a case the correct ruling may be to refuse an amendment to the name of a respondent. In the event that was to occur, the applicant would then need to consider whether another s.394 application should be made and to seek an extension of time for the filing of that application, should it be made out of time.”

[16] In Sinden v HDR Inc.; HDR Pty Limited 5 the Full Bench considered the application of section 587 as follows:

“[11] Section 586(a) of the FW Act provides that the Commission may “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”. The discretionary power conferred by s 586(a) is self-evidently broad, and encompasses but is not expressed as confined to the correction of mistakes. In respect of the amendment power in a previous iteration of the federal legislative scheme for industrial relations, the High Court treated it as having a wide field of operation so as to give effect to the statutory intention that proceedings should be directed to the merits and that technicalities and legal forms should not be regarded. The same approach is applicable under the FW Act having regard to the requirements in s 577(b) for the Commission to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities and in s 578(b) for the Commission in performing functions and exercising powers in relation to a matter to take into account equity, good conscience and the merits of the matter. In the context of the Commission’s unfair dismissal jurisdiction, the s 586(a) power has been used to correct the identification of a respondent employer to the extent of substituting one corporate entity for another.”

[17] Mr Fogarty’s F1 application states his reasons for requesting an amendment to the application is to make sure all respondents are to be named and involved in the process and their details on the Certificate issued.

[18] Mr Fogarty submitted that he sought to amend his application as he wanted to compel the Managing Director and the three CEO’s to attend the conciliation in order to try and reach a resolution to his application. Mr Fogarty also submitted should the matter proceed beyond the jurisdiction of the Commission he wanted there to be no doubt as to who all the respondents were.

[19] A review of the Commission’s case management system indicates that Mr Fogarty was contacted by the Commission on 16 April 2018 to clarify his intentions in relation to the naming of the Respondents to his application. The file notes indicate that Mr Fogarty stated that he did not intend to name the CEOs as individual Respondents as they were part of the company, not individuals, and that it would not make sense to list them as such. The file notes indicate that Mr Fogarty named the Respondents as he did in order to compel each of them to attend the conciliation conference convened by the Commission. It was not until after the conciliation was unsuccessful that Mr Fogarty sought to amend his application.

[20] I am satisfied on the evidence before me that Mr Fogarty made a conscious decision to name the parties to his initiating application in the manner that he did. I do not consider that he made an error in doing so as I accept his submission that he sought to compel a direct conversation with the three CEO’s. Taking into account the matters I am required to consider I am not prepared to exercise my discretion to amend Mr Fogarty’s application.

Permission to appear

[21] The Respondents sought permission to be represented by a lawyer pursuant to s.596 of the Act. The Applicant objected to permission being granted. Directions were issued on 9 July 2018 requiring the parties to file submissions addressing s.596 of the Act. The parties were provided with an opportunity to make additional oral submissions during the conference on Monday 13 August 2018.

[22] In making my decision I took into consideration the parties’ written and oral submissions.

[23] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance s.596 of the FW Act.

[24] The relevant considerations under s.596 of the FW Act are:

“596 Representation by lawyers and paid agents

…

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

…”

[25] The circumstances contemplated by s.596(3) and (4) of the FW Act do not apply here.

[26] Subsection 596(2)(a), (b) and (c) are commonly paraphrased as (a) efficiency /complexity, (b) inability to represent oneself effectively, and (c) fairness. The decision to grant permission for representation is a discretionary one that is only exercisable if the Commission is satisfied that at least one of the conditions in section 596(2) of the FW Act is met.

[27] The approach to considering the question of representation has been examined in Warrell v Walton 6 in which Flick J found that:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...” The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

[25] The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)...”

[28] I was satisfied that the Respondent should be granted permission to be legally represented given the matter was sufficiently complex.

Mr Fogarty’s Form F52 Application

[29] On 16 July 2018, Mr Fogarty made an application for an order for production of documents under section 590(2)(c) of the FW Act seeking the following documents:

“1. Copies of all correspondence sent by respondents relating to proposed engagement, contracts, remuneration, benefits, commissions and National Employment Standards.

2. Copies of all correspondence between Respondents and their legal representative relating to the FWC matters.

3. Copies of all correspondence between the Respondents and their legal representatives’ relating to changing of the engagement to be from Gett Germany to being via Gett Asia.

4. Copies of all sales reports, trip reports, expense claim reports, CRM reports.

5. Details of all payments, amounts, dates and why payment made to the Applicant by the Respondents.

6. Copies of emails and all other communications from the Respondent to incur expenses and be reimbursed.

7. An itemised list and details of all GETT marketing, product materials / keyboards / mice sent to the Applicant. When sent to the Applicant, what materials sent, the value of the materials / products, Why the Respondents remained sending the materials to the Applicant up until end of March 2018 if they claimed the Applicant was terminated prior.

8. An affidavit signed by each of the Respondents they are unable to participate personally in FWC proceedings as they do not speak, understand nor are they capable of writing English “except as to order food in a restaurant” as claimed by their legal representative to the FWC and the Applicant.”

[30] Mr Fogarty submitted that each of the documents were being sought for the following reasons:

“1. For procedural fairness. I was required to use various communications systems set up by the Respondents and do not have access to them now. They required me to use their email address [email protected], their CRM System for reporting etc

2. To assist the proceedings true account of relationships, evidence “controlling minds” of the respondents, show various contracts, show various agreements of remuneration/ benefits and conditions, evidence Respondents sham contracting, Evidence adverse actions and breaches Fair Work Act.

3. To evidence the FWC has jurisdiction.

4. To evidence the Respondents legal representative was not truthful to the FWC Commissioner by them claiming the respondents are not capable to participate in proceedings as “they are not able to speak or understand English except to order food in a restaurant”. This was a false claim as an attempt to shield the Respondents when it in fact has I think hindered proceedings and do nothing more than inflate legal representative’s avoidable costs.

5. To assess via discovery the Agreements and correspondence which required that even if the Respondents engaged the Applicant as an “ independent contractor” for their own benefits it would in no way diminish the Applicants rights, terms and conditions had they been on the same terms and conditions as if they were “employed’ under the terms of the Agreement. CEPU v Mainteck Pty Ltd (QUD891/2016)

6. To evidence the Applicant remained engaged and working for GETT at least until 20th March 2018, that the Respondents had kept sending sales directions, marketing materials, sales and demonstration materials/ products/ samples to the Applicant at least up until 20th March 2018.

7. To example why the Respondents remained sending the market9ng, sales and sample GETT materials to the Applicant up until end of March 2018 if they claimed the Applicant was terminated prior.”

[31] On 27 July 2018, my chambers sent correspondence to Mr Fogarty advising him that I was not inclined to grant the Order as I was not satisfied that any of the documents sought were relevant to the matters that I needed to consider. I also advised Mr Fogarty that, in relation to items 7 and 8, I could not require the Respondent to create any document to be produced. Mr Fogarty requested to be heard in relation to this issue and the matter was listed for conference on 13 August 2018.

[32] Section 590 of the Act provides as follows:

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

…

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;”

[33] The Respondents agreed to file in the Commission, by consent, any correspondence sent between Adam Wong, Pierre Beer, Moses Chan and the Applicant between 31 January and 20 March 2018 regarding contract negotiations or instructing or authorising the Applicant to perform work. Mr Fogarty was given permission to file additional documentation in the Commission, being copies of packing slips for deliveries made to himself and evidence of payments received from the Respondents between 31 January and 20 March 2018. On this basis, I declined to issue the Order as requested.

[34] In relation to the items requested at items 2 and 3, I note that confidential communications between a client and their lawyer are subject to legal professional privilege. There is no provision in the Act that excludes the doctrine of privilege in relation to proceedings before the Commission. 7 Mr Fogarty pressed his application for the documents sought in items 7 and 8. I note that the Commission can only require parties to produce documents which are in their possession, custody or control and cannot require a person to create documents to comply with an order to produce.

[35] In relation to the documents requested at items 1 and 4, I consider that granting an Order in such terms would be oppressive. In relation to item 1, Mr Fogarty had provided no limitation to the time span from which the correspondence he was seeking was sent or received, no limitation on to or from whom the correspondence had been sent, and no limitation as to whose proposed engagements this correspondence was regarding. In relation to item 4, similarly there was no limitation as to which sales reports, trip reports, expense claim reports and CRM reports Mr Fogarty was seeking nor any limitation to the time period in which these documents were sought. Further, in light of the documents that the Respondent had consented to providing, I was not satisfied that any of these additional documents were relevant to the matters I was required to consider.

[36] In relation to the documents requested at item 5, I considered that as Mr Fogarty himself would have records of all payments made to himself by the Respondents it was unnecessary and oppressive to require the Respondents to produce such documentation. I further noted that again, as Mr Fogarty was unable to specify what documents he was seeking that would contain ‘details of all payments, amounts, dates and why payment made to the Applicant’, it would appear that he was seeking to require the Respondents to create another document to be produced.

[37] Mr Fogarty provided some clarification as to the documents sought at item 6, however I was not satisfied that these documents were relevant to the matters that I was required to consider.

Mr Fogarty’s application for a confidentiality order

[38] On 5 November 2018, well after the conclusion of the hearing, Mr Fogarty wrote to the Commission requesting that a decision not be issued publicly in relation to his application. In the alternative, Mr Fogarty sought to have the names of the parties de-identified.

[39] Directions were issued and Mr Fogarty was required to file submissions in support of his request for the decision not to be made public or to have the parties de-identified. Mr Fogarty did not comply with the directions and sought an extension of time for filing, I granted the extension. Mr Fogarty subsequently withdrew his application on the day his submissions were due.

Legislative scheme

[40] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) The application 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).

[41] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[42] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 8where the Full Bench said:

“[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.” (endnotes not reproduced)

[43] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

[44] In this matter, it is first necessary to determine the date that the dismissal took effect. If Mr Fogarty’s employment ended on 20 March 2018 then the application is within time and an extension of time is not required. If Mr Fogarty’s employment ended on 31 January 2018 then the application was lodged 48 days outside of the 21 days and I would need to consider if a further period should be allowed given consideration of the factors in s.366(2).

Effective date of dismissal

[45] The Respondents submitted that Lion Global’s contract with the Second Respondent was terminated by letter on 14 December 2017 providing 6 weeks’ notice, which was both posted and emailed to the Applicant. They submitted that Mr Fogarty’s dismissal therefore took effect on 31 January 2018. 9

[46] The email attaching the letter of termination of the contract sent from Mr Beer to Mr Fogarty copying in Mr Wong provided as follows:

“Enclosed you will find the cancellation notice for the existing consulting contract. You have helped us in the last two years to create basic sales structures for Gett Asia. From 2018 onwards, the shareholders of the Gett Group will not make any further funds available from the Gett budget in Germany. Adam is responsible for the overall budget and business development of our APAC activities. He will contact you in the next few days to define the nature and scope of a possible future collaboration between you and Gett Asia.”  10 (emphasis added)

[47] The Respondents also submitted that the First Respondent never had a contractual relationship with either Mr Fogarty or Lion Global which could have been terminated on 20 March 2018. They submitted that instead, on 20 March 2018, Mr Fogarty was informed that they had decided to cease any further contractual negotiations. 11

[48] Mr Fogarty filed submissions and a substantial amount of documents with the Commission, a large proportion of which were relevant to the merits of the case. I have taken into consideration Mr Fogarty’s submissions and the evidence relevant to those matters I am required to consider.

[49] Mr Fogarty submits that whilst he was negotiating a contract with the First Respondent he continued to perform work for the First and Second Respondents. Mr Fogarty’s submission was he had remained engaged and working with the Respondents until 20 March 2018 when he received an email from Mr Wong advising that he did not meet their requirements for the sales force of the First Respondent and that they were “not able to go further with [him] for new contract topic with GETT Asia Limited”. 12 Mr Fogarty also makes the following submission;

“I believe I remained engaged from September/October 2015 and working with GETT until they sent me an email late evening 20th March 2018. No matter how they may try to claim different contracts etc it is evident I remained engaged and working with them until this time and that the same “controlling minds” of the Respondents are involved.

“GETT” refers to the related entities and related “controlling minds” who are names as Respondents.” 13

[50] Essentially I understood Mr Fogarty’s submission to mean that the Respondents’ business was owned and operated by the same business partners therefore the businesses were associated entities. Further, any work he was performing for one of the entities should then have been considered to be work for the other regardless of who his contract was with.

[51] The Respondents submit they are not associated entities and that Mr Fogarty has misunderstood the definition and application of the term “controlling minds”, further he has failed to make any relevant submissions in support of those claims.

[52] Mr Fogarty’s written submissions were that he was at all times up until 20 March 2018 an employee and the Respondents had engaged in sham contracting. He submits he received marketing materials and products from the Respondents after his contract was terminated and that he communicated with the Respondents by phone, Skype, Whatsapp and email giving the full appearance that he remained working with them. 14

[53] Mr Wong gave evidence that the Second Respondent had made its intentions clear to Mr Fogarty that they wished to end the relationship. Upon receiving the notification Mr Fogarty wrote requesting a number of entitlements be paid to him to which the Second Respondent declined. He was notified he would be paid his outstanding commissions up to the date of termination of his contract. 15 Mr Wong led evidence that it was made clear that any future collaboration between Gett Asia and Mr Fogarty was up to him.

[54] Mr Wong’s evidence was that he entered into contract negotiations with Mr Fogarty and during the entire period of the protracted negotiations Mr Fogarty was neither directed nor instructed to perform work for the First Respondent. 16 Mr Wong disputes that Mr Fogarty actually performed any work for the First Respondent after the termination of his contract with the Second Respondent. His evidence was that they had sent brochures to Mr Fogarty ahead of the Australian Healthcare Expo in the anticipation that the contract negotiations would result in a favourable relationship17, this however did not eventuate and there was no requirement for him to attend the Expo on behalf of the Respondents.

[55] On 24 January 2018 Mr Fogarty wrote to Mr Wong providing an updated version of his proposed contract which he says was more reflective of a non-employee engagement. Mr Fogarty also wrote to Mr Wong on 19 March 2018 informing him that he would not sign the contract offered to him by Mr Wong in its proposed form as it implied that he would be an employee. 18 Mr Fogarty also stated that he had been busy over the period of the last two months with travel and holidays and requested a response to his inquiry as to whether or not the First Respondent would like him and his contacts to continue working to support the business in a number of areas. Mr Fogarty states he had been busy preparing for the Australian Healthcare Expo and the “NSW Project”.

[56] Mr Wong’s evidence was that he responded stating that he had mentioned on multiple occasions that there was no arrangement in place until such time that Mr Fogarty could confirm his acceptance of the contract offered and that there was no agreement in the form of Mr Fogarty providing services as a sales representative for the company. Mr Wong’s evidence was that he had made it clear to Mr Fogarty that as there was no contract in place he was not required to attend the Expo on behalf of the First Respondent. Mr Fogarty did not dispute the oral evidence given by Mr Wong.

[57] Mr Wong requested Mr Fogarty provide evidence of the work he had claimed to have performed and he would consider any response as part of the contract negotiations. Mr Wong’s evidence was that Mr Fogarty had at no time been under any instruction to perform any work and instead Mr Fogarty continued to engage with his Expo planning for his own gain. Mr Wong’s uncontested evidence was that Mr Fogarty had tried to claim a purchase order submitted by a customer as work he had performed when he in fact had not engaged with the customer but rather just forwarded the order in February 2018 after the customer had already placed an order directly with the Respondents.

[58] Mr Wong gave evidence the packing slips Mr Fogarty produced as evidence in support of his argument were for stock sent to him whilst he was still under contract with the Second Respondent and that the bank statements submitted detailed payments made for work conducted by Mr Fogarty for the Second Respondent prior to 31 January 2018. 19 Mr Wong’s evidence was that during the entire period of the protracted negotiations Mr Fogarty was neither directed nor authorised to perform any work for the First Respondent.

[59] Mr Wong gave evidence that during the negotiations he showed a preparedness to back date any contractual arrangement entered into to include any period to which Mr Fogarty could demonstrate he had performed work however Mr Fogarty failed to provide evidence supporting his claims. 20 Mr Wong also gave evidence that he had made it clear in both written correspondence and verbally that he was not going to respond to Mr Fogarty’s request for instruction about attending the Expo or conducting any other work until a contract was in place. However, the negotiations between Mr Wong and Mr Fogarty broke down and consequently, on 20 March 2018, Mr Wong replied to Mr Fogarty informing him that Gett Asia was no longer interested in continuing with any further contract negotiations.21

[60] As stated earlier in determining an extension of time application I am not required to determine if Mr Fogarty was engaged as an employee or a contractor. Nor am I required to determine whether Mr Fogarty was dismissed. The consideration is that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 22 Whether the employment relationship exists is a question of fact (unless a law deems an employment relationship to exist when it otherwise would not).23

[61] I have considered all of the evidence and I am satisfied that Mr Fogarty was notified on 14 December 2017 by the Second Respondent that his contract would come to an end on 31 January 2018. The evidence supports a finding that on 15 December 2018 Mr Fogarty wrote to the Second Respondent acknowledging his contract had been terminated. Thereafter Mr Fogarty proceeded to engage in contract negotiations with the awareness that his contract with Second Respondent had been terminated effective January 2018. I am satisfied that, regardless of the ongoing contract negotiations, the understanding held by the parties that Mr Fogarty’s contract with the Second Respondent had come to an end had not changed over the period of the subsequent two months.

[62] I am also satisfied that Mr Fogarty was well aware a new contract with the First Respondent had not been entered into. On 3 January 2018 Mr Fogarty actively engaged with the First Respondent in contract negotiations providing them with his preferred terms whilst requesting a contract of a similar nature to the one he had entered into with the Second Respondent. Mr Fogarty in his correspondence went as far as explaining the contract was with his company Lion Global and that it would be his company providing the consulting services. Mr Fogarty was explicit in providing that it was his intention to generate invoices for services rendered by his company and he was not to be perceived as an employee as this may give rise to tax implications.

[63] Considering all of the evidence I am not satisfied that Mr Fogarty was instructed to perform work by the Respondent’s after his contract was terminated on 31 January 2018. The evidence suggests Mr Fogarty had been on leave sometime between February and March and had focussed on getting ready for the Expo. He explained to the Respondents, in correspondence sent as part of his contract negotiations, that it was his preference to represent them at the Expo not the other companies that he claims had expressed interest in his services. This may have been a tactic to leverage his position in the contract negotiations however regardless it is a clear indication that he had been performing such duties in his own capacity and not at the direction of the Respondents.

[64] Although Mr Fogarty was trying to negotiate a contract with Gett Asia which did not eventuate, I am satisfied that Mr Fogarty’s was notified by way of written correspondence that his contract with the Second Respondent would come to an end on the 31 January 2018 and Mr Fogarty was at all times aware that his contract with the Second Respondent had come to an end at that time. Accordingly, I consider that 31 January 2018 is Mr Fogarty’s effective date of dismissal and his application was therefore made 48 days outside of the 21 day period.

Approach of the Commission

[65] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. The onus of establishing exceptional circumstances is on the Applicant.

[66] In the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 24 the Full Bench made the following statement which, although concerned with the unfair dismissal application, is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

“[12] This decision makes an important point which we consider deserves re-emphasising. 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.”

[30] This extract must be read in its entirety. The decision goes on to state:

“[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.”

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

[67] I will now deal with each of the matters to be taken into account pursuant to s.366(2) separately.

(a) The reason for the delay

[68] Mr Fogarty’s submissions largely went to the merits of his Application, and the reasons he advanced for the delay were that his application was not made out of time because his dismissal took effect on 20 March 2018. He submits any work performed in the period during the contract negotiations should be recognised as an ongoing employment relationship with the Respondents. Mr Fogarty also submitted, should the Commission consider there to be a delay, any delay was attributed to by the Applicant attempting to settle the matter with the Respondent prior to it becoming to “legalistic”.

[69] The Respondents submit Mr Fogarty has not provided any reason for the delay other than that there was no delay.

[70] For this consideration there must be an acceptable reason for the delay. 25

[71] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances. 26

[72] It is not contested that Mr Fogarty had made numerous attempts at trying to resolve the matter with the Respondents prior to the hearing. Unfortunately the parties were unable to reach an agreement and the matter proceeded. However I do not consider this to be an exceptional circumstance that would warrant the granting of an extension of time.

[73] I have previously found that Mr Fogarty had not been instructed to perform work for the Respondents and that Mr Fogarty was aware that his contract with the Second Respondent had come to an end, therefore his employment ended on 31 January 2018. It was open to Mr Fogarty at all times after being notified that his contract with the Second Respondent had been terminated to make an application. Mr Fogarty did not make any attempt to lodge an application until his demands regarding the terms of the contract with the First Respondent were rejected. I am not satisfied that Mr Fogarty has provided an acceptable reason for the delay. The reasons advanced by Mr Fogarty are not considered to be exceptional circumstances therefore this is a factor that weighs against a further period being granted.

(b) Any action taken by the person to dispute the dismissal

[74] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 27

[75] Mr Fogarty submitted that he had raised his concerns to the Respondents. 28

[76] The Respondents submitted that Mr Fogarty took no steps to dispute his dismissal until the lodgement of his application. 29

[77] The evidence suggests Mr Fogarty accepted his contract termination with the Second Respondent and made inquiries about his termination payment, he then proceeded to enter into negotiations with the First Respondent however it was not until the contract negotiations broke down that he sought to dispute the dismissal. This weighs against the granting of an extension of time.

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

[78] Prejudice to the employer will go against the granting of an extension of time. 30

[79] The Respondents submitted that the continuation of the proceedings is unfair to them as they have no presence in the jurisdiction and incur significant costs in defending these proceedings in circumstances where the application has no chance of success. 31

[80] Mr Fogarty submitted that he had caused no prejudice to the Respondents as he did not agree his application was late. Mr Fogarty further submitted that there was no disadvantage in any claimed lateness of his application as he had tried to settle matters without proceedings becoming more legal and formalised at the Commission or relevant courts. 32

[81] While I note the Respondent’s submission, defending an application is a challenge any employer faces when an application has been made against them. In the circumstances of this case, I regard this factor as neutral.

(d) Merits of the application

[82] Mr Fogarty submitted that he had been dismissed by the Respondents due to his complaints about outstanding monies and his status as an employee or independent contractor. He submitted that the Respondents had engaged him under sham contracts and had advised that they would provide him with entitlements as per the NES and meet their obligations under Australian law. 33

[83] The Respondents submitted that neither the First nor Second Respondents are national systems employers as defined in s.14 of the Act. They submitted that they are not constitutional corporations, have no place of business or other physical presence in Australia, are not registered with ASIC and are not registered with the ATO. As to the proposed Third, Fourth and Fifth Respondents, it was submitted that they are not employers. 34

[84] In relation to the Applicant’s claims regarding sham contracting, the Second Respondent submitted that Mr Fogarty sent the first draft of a contract he proposed in an email on 27 August 2015. The contract prepared by Mr Fogarty suggests the engagement of Lion Global as an independent contractor who is permitted to determine the time and place of performance of services, to delegate the services and to provide services to third parties. They submitted that whilst the contract ultimately signed differed from this draft in many regards it retained these features. 35

[85] The Respondents submitted that Mr Fogarty had not stated any other facts or circumstances which would give rise to a potential claim under Divisions 3 to 5 of the Act against the Second Respondent, and had not outlined any facts or circumstances which would give rise to any potential claim under Part 3-1 of the Act against the other Respondents. 36

[86] Further, the Second Respondent submitted that Mr Fogarty was never employed nor dismissed by them. They submitted that their contract with Lion Global was terminated in accordance with the terms of that contract due to a restructure of their business. The First Respondent submitted that they did not have a contractual relationship with the Applicant and had instead made an offer for future cooperation on 19 January 2018 which was rejected on 22 January 2018. It submitted that their subsequent contractual negotiations were unsuccessful. 37

[87] As stated above, the Commission is not required to make a determination that an Applicant has been dismissed before holding a conference under section 368 of the Act. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1. 38

[88] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 39 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.40 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

(e) Fairness as between the person and other persons in a like position

[89] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 41

[90] There were no submissions made by either the Respondents or the Applicant that were of particular relevance to the factor, therefore I find this factor a neutral consideration.

Conclusion

[91] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[92] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 42

[93] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[94] An order 43 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

S. Fogarty on his own behalf;

M. Kobras for the Respondent.

Hearing details:

2018

Telephone hearing

15 August 2018

Printed by authority of the Commonwealth Government Printer

<PR703381>

 1   Hewitt v Topero Nominees Pty Ltd t/a Michaels Camera Video Digital [2013] FWCFB 6321 at [50]

 2   Form F8 – General protections application involving dismissal

 3   Form F8A – Response to general protections application

 4   [2015] FWCFB 2371

 5   [2018] FWCFB 6934

 6 [2013] FCA 291

 7   Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 4552, [46]

 8   [2011] FWAFB 975.

 9   Exhibit R2, 1a – 1c

 10   Form F8A – Response to general protections application

 11   Exhibit R2, 1f

 12   Exhibit A1, 1a – 1c

 13   Exhibit A1, 1d

 14   Exhibit A1, 1d

 15   Exhibit R1, 6

 16   Exhibit R1, 17

 17   Exhibit R1, 19

 18   Exhibit R1, 7-15

 19   Exhibit R1, 20

 20   Exhibit R1, 17

 21   Exhibit R1, 16

 22   Burns v Aboriginal Legal Service of Western Australia (Inc)(unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 [24]

 23   Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 427

 24   [2016] FWCFB 349

 25   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 26   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [45]

 27   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 28   Exhibit A1, 1e

 29   Exhibit R2, 1e

 30   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 31   Exhibit R2, 1g

 32   Exhibit A1, 1f

 33   Exhibit A1, 1h

 34   Exhibit R2, 1g

 35   Exhibit R2, 1g

 36   Exhibit R2, 1g

 37   Exhibit R2, 1h

 38   Hewitt v Topero Nominees Pty Ltd t/a Michaels Camera Video Digital [2013] FWCFB 6321 at [50]

 39   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 40   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 41   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 42   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 43   PR703382