Steven Jeffrey Johnson v Water Corporation & The Trustee for the DFP Business Trust - [2024] FWC 147

[2024] FWC 147 [Note: An appeal pursuant to s.604 (C2024/834) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Steven Jeffrey Johnson
v

Water Corporation

&
The Trustee for the DFP Business Trust

(C2023/7473)

DEPUTY PRESIDENT BEAUMONT

PERTH, 23 JANUARY 2024

Application to deal with contraventions involving dismissal

Issue and outcome

On 29 November 2023, Mr Steven Jeffrey Johnson (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The First Respondent, the Water Corporation, objected to the application on the bases that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act and that it did not dismiss the Applicant because at the relevant time it was not his employer.

On 8 December 2023, the Applicant made an application to join a labour hire company, ‘The Trustee for the DFP Business Trust – DFP Recruitment Services’ (DFP Recruitment Services), to the application. The submissions in support of such application included that the Applicant had purportedly been advised by his lawyer (the Workplace Advice Service) that a general protections application involving dismissal should include as a respondent the legal entity shown on his final payslip. It appeared from the materials filed that the Applicant’s services to the First Respondent had been provided through DFP Recruitment Services. Neither the First Respondent nor DFP Recruitment Services objected to the application, and in light of the submissions made, DFP Recruitment Services was joined to the application as the Second Respondent pursuant to s 586 of the Act.

Having noted that the Act requires the application under s 365 (the application or general protections application) to have been made within 21 days of the dismissal taking effect, s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 366(2)(a)–(e) are considered.

Directions were issued to the parties providing detailed information of what was required of both. On the receipt of the parties’ materials, it became clear that there was a level of confusion regarding the date on which the Applicant’s dismissal took effect.

In his Form F8, the Applicant stated that his dismissal took effect on 31 January 2020; therefore, according to the Applicant, the application was made 1,377 days late, with the 21-day time limit concluding on 21 February 2020. However, in his witness statement, the Applicant said his ‘employment’ was terminated by an officer of the First Respondent on 16 August 2019.

The Second Respondent contends that the Applicant’s employment ceased on 16 August 2019 and the First Respondent submits that it is not aware of the precise date of the Applicant’s dismissal from his employment with the Second Respondent, however it adopts the Second Respondent’s position that the correct dismissal date was 16 August 2019. As such, to have been made in time the application was due to be made by 6 September 2019.

In light of there being a factual dispute about the date of ‘dismissal’, I decided it was appropriate to conduct a hearing. At the commencement of the hearing the Applicant addressed the date of ‘dismissal’, confirming he accepted that the date of his purported dismissal was 16 August 2019. Having considered the evidence, I have formed the view that the Applicant’s work relationship with the First Respondent ended at that time, as did his work relationship with the Second Respondent, and hence the application was made 1,545 days late.

Turning briefly to the First Respondent’s jurisdictional objection that it did not dismiss the Applicant, in Herc v Hays Specialist Recruitment (Australia) Pty Ltd (Herc), the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[3] This view was reached notwithstanding s 396(a) of the Act. Nevertheless, it appears to be accepted that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless and until a further period has been granted.[4] The proper approach, according to the Full Bench, is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that, for example, there has been no dismissal.[5] This of course requires an assumption that an applicant is an employee for this purpose and that the employee has been dismissed.[6]

In light of Herc, and observing that in this case there is acceptance between the parties that the Applicant’s employment ended as of 16 August 2019 – whether that be with the First or Second Respondent, the Applicant of course contending he had been employed at the relevant time by the First Respondent, I have adopted an approach similar to that as articulated in Herc in respect of the First Respondent. This is the case notwithstanding Herc dealt with an unfair dismissal application.

As will become evident in the reasons that follow, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 366(1)(b). Accordingly, the application is dismissed and an Order issues concurrently.[7]

Background

2.1 Applicant’s evidence and submissions

The Applicant relied upon the materials he tendered into evidence, in addition to viva voce evidence he provided at hearing.

The Applicant appears to have had an extended working relationship with the First Respondent since 1995, albeit prior to that he had also worked for the First Respondent’s predecessor, the Water Authority of WA, during the period of 1990 to June 1995.[8]

The Applicant details the following periods of work with the First Respondent from July 1995:

a)   occasionally engaged as a CAD Consultant (independent contractor) with the First Respondent with no intermediary parties, during the period between July 1995 and October 1998;[9]
b)   engaged as an AutoCAD Development Support Officer by the First Respondent on a series of contracts through a series of intermediary parties (GECITS, Execom, Resources 6, Paxus) from November 1998 to June 2013;[10]
c)   employed as an AutoCAD Development Support Officer by the First Respondent via a series of direct contracts with no intermediary parties from July 2013 to October 2015;[11]
d)   engaged on a series of contracts via the Applicant’s company, Cad Nauseam Pty Ltd (Cad Nauseam), of which the Applicant was a sole director, with the sole purpose of the First Respondent engaging that company so that the Applicant would perform the role of AutoCAD Development Support officer over the period November 2015 to December 2017.[12] It is observed that the purported period of employment came to an end on 31 December 2017, after the Applicant considered he had not been provided with an acceptable offer for employment by the First Respondent;[13]
e)   from March to June 2018, the Applicant was engaged in discussions as a prospective independent contractor and in June 2018, the First Respondent engaged him as an independent contractor to perform a two-day training course at its premises; and
f)   from 12 August 2019, the First Respondent engaged the Applicant on a 6-month contract via the Second Respondent, filling the position of Drawing Management Officer, but by 16 August 2019 the work relationship ended when the First Respondent purportedly terminated the Applicant’s ‘employment’.[14]

Thereafter the Applicant states he was employed by Avid Resources (Avid) from October 2019 to October 2021, noting that Avid was an independent contractor to the First Respondent[15] and that most of the work he performed was for the First Respondent.[16]

According to the Applicant, the First Respondent harmed his employment with Avid by refusing to provide him the necessary systems access that it had provided to others who had worked at Avid, at that same time.[17]

The Applicant gave evidence that he had been employed at ‘SG Controls’ since December 2021,[18] and that this entity was an independent contractor to the First Respondent.[19] The Applicant again asserted that the First Respondent had harmed his employment with SG Controls by disabling necessary access systems for him to perform his work, and requiring the work carried out by SG Controls to be performed by employees other than the Applicant.[20]

The Applicant gave further evidence that he had long suspected that the actions that had been taken against him (presumedly by the First Respondent) were a retaliatory response for a workplace complaint he had made on 1 December 2017.[21] However, he had considered that he had insufficient material upon which to initiate an action that had a reasonable chance of success.[22]

The Applicant referred to having recently secured access to documents under the ‘Freedom of Information Act’ (FOI) (presumedly the Freedom of Information Act 1992 (WA)) that provided, in the Applicant’s view, strong evidence of the First Respondent’s general protections breaches and its deliberate deception and concealment.[23]

The Applicant detailed that he initiated his first FOI request, presumedly to the First Respondent, on 17 August 2023, and although it was responded to within 11 days, only nine documents were provided.[24]

The Applicant described having made 10 subsequent (FOI) requests (to the First Respondent) that were not responded to in the required timeframe. The Applicant said that the responses were returned following much discussion of proposed timelines and other things, between 57 and 63 days after the request dates.[25] The Applicant said that of the 10 new requests returned, he had identified areas where he believed (and sometimes could prove) documents were still being withheld for 7 of the FOI requests and hence he had initiated ‘Internal Reviews’ through the Office of the Information Commissioner (which were currently awaiting investigation at the time of filing the Applicant’s witness statement).[26]

The Applicant noted that the Internal Reviews were supposed to take a maximum of 14 days, which was met in most cases, but the First Respondent’s Internal Reviewer requested an extension of time in one case, which he agreed to.

The Applicant said that final documents (presumedly subject to the FOI requests) were provided on 24 November 2023, 99 days after his initial request.[27] These, said the Applicant, were important to the case because they provided evidence of the contractual history between himself and the First Respondent. The Applicant held the view that ‘blockages’ in the First Respondent’s FOI process added to the delay in him filing his application.

The Applicant said he received full access to the last set of FOI documents (proving, in his words, the ‘contractual relationship’) late on 24 November 2023 and submitted his application to the Commission on 28 November 2023. However, it is noted that the Registry of the Commission informs that the application was received at 01:14 AM (AWST) on 29 November 2023, and it follows in the circumstances of this case that the application was made on that date.

The Applicant said that he obtained legal advice late on 7 December 2023 that he should include the Second Respondent in this action and submitted a request to do so early on 8 December 2023.

2.2 The First Respondent’s submissions

The First Respondent submitted that on 29 November 2017, that is six years prior to the application being made, the Applicant was working as a contractor providing services to the First Respondent, by his own company CAD Nauseam.

The First Respondent stated the Applicant’s contract was due to expire on 31 December 2017 and thereafter, another contractor, IBM, was to provide most of the services that the Applicant had been providing.

According to the First Respondent, prior to the meeting with the Applicant on or around 1 December 2017, the First Respondent had decided to offer full-time, fixed term employment to the Applicant to continue to perform the balance of the services then being performed by the Applicant, as well as other duties. However, the First Respondent considered that the role it was to offer the Applicant fell under a level 5.7 classification and made the offer on that basis (Position).

Whilst the Position was offered to the Applicant on or around 1 December 2017, the First Respondent submits that the Applicant complained that the pay rate offered was too low and rejected the offer. The First Respondent denies that this complaint gave rise to circumstances that constitute a workplace right within the meaning of the Act.

The First Respondent states that any action not to provide any further offers (of work) to the Applicant was taken solely for the reason that the Applicant had rejected the offer of the Position and was not interested in accepting an offer at the prescribed rate of pay in the enterprise agreement (the level 5.7 classification).

Later, in or around 2018, the First Respondent conducted an audit as a part of its normal quality assurance processes. In doing so, it identified, based on the documentary evidence available, that the Applicant had:

(a) accepted a $30 gift card from a vendor of the First Respondent; and
(b) accepted an offer to attend a conference in Paris, paid for by a vendor, but the Applicant continued to bill the First Respondent his day rate while he attended that conference.

The First Respondent submitted it was concerned that:

(a) the acceptance of the gifts occurred without prior approval;
(b) the Applicant charged for activities while overseas that were not approved; and
(c) the Applicant had possibly acted in a manner inconsistent with the Respondent’s Code of Conduct and Gift & Hospitality Policy.

The First Respondent acknowledged that in 2019, it became aware that the Applicant had been engaged by a third party contractor (Avid) who contracted with the First Respondent, and that the Applicant commenced providing services to the First Respondent via the arrangement.

At that time, the First Respondent decided that the Applicant’s services were no longer required for the reasons that:

(a) a decision had already been made by the First Respondent that the services the Applicant was going to perform were to be provided by IBM, which had already commenced providing those services, and the intention was to centralise that function. This was the primary reason for the decision as the engagement occurred due to a miscommunication between departments of the First Respondent; and
(b) the Applicant should not have been re-engaged because the First Respondent had concerns that he did not meet the standards of conduct expected by the First Respondent due to the Code of Conduct issues referred to above.

In or around 2023, SG Control Pty Ltd (SG Controls) tendered for work with the First Respondent and ultimately won the contract. The First Respondent stated that the Applicant was named as one of the ‘Key Personnel’ in the contract between SG Controls and the First Respondent and SG Controls requested access to the First Respondent’s systems for the Applicant to complete the contracted services.

The First Respondent submitted it requested that SG Controls not use the Applicant to provide the services and refused to provide access for the Applicant to use the First Respondent’s systems. These actions were taken, according to the First Respondent, solely for the reason that the First Respondent had made the decision not to re-engage the Applicant solely due to the concerns that the Applicant had acted in a manner inconsistent with the First Respondent’s Code of Conduct in the past. The First Respondent said it did not take these actions because of, or for reasons that included, the Applicant’s alleged workplace right or any other prohibited reason.

Consideration

3.1 Extension of time

Consideration now turns to whether to extend the 21-day period within which the Application was to be brought.

In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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 similar position.

It has been said that proceedings not commenced in time should not be entertained.[28] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[29]

In decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[30] The Full Bench observed that when exceptional circumstances are found, essentially the matter could come down to whether it is fair and equitable that time should be extended.

The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[31] 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 can be considered exceptional.[32]

In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[33]

At the commencement of the hearing, the parties were referred to s 366(2) of the Act and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

3.2 Reason for the delay

In Pottenger v Department of Caffeine,[34] it was observed that the Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable[35] or a reasonable explanation.[36]

The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[37] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[38]

The period required to be considered under s 366(1)(a) is the period after the 21-day timeframe for lodging the application. However, in the following paragraphs I refer, in part, to circumstances preceding the Applicant’s purported dismissal from the First Respondent in August 2019. I have done so because those circumstances bear relevance to the subsequent events that unfolded between the Applicant and the First Respondent and provide context with respect to any determination of whether there are exceptional circumstances.

The Applicant attributes the delay in making his application upon having only become aware of the ‘real’ reasons for his alleged dismissal from the First Respondent after having made FOI requests on 17 August 2023. As to what constitutes the ‘real’ reasons, it appears from the Applicant’s submissions and evidence that the Applicant is referring to actions having been taken against him in retaliation to him having made a workplace complaint on or around 1 December 2017.[39] In addition, the Applicant also refers to false allegations of misconduct having been made against him that were later used as justification for action against him[40] – and were used within the First Respondent to justify the termination of his contract.[41]

Before considering the cessation of the work relationship between the Applicant and the First Respondent on 16 August 2019, the circumstances as at December 2017 warrant examination for reasons already traversed.

The Applicant asserts in his document titled ‘Evidence of Deliberate Deception’ that he made a workplace complaint to the First Respondent on or around 1 December 2017 and that the First Respondent took immediate adverse action in response to it. In support of this contention the Applicant refers to an email which accompanied the Applicant’s application and is dated Friday, 1 December 2017. It is uncontroversial that the email had been received by the Applicant pursuant to FOI request ‘880’. The email set out the following:

Hi ‘redacted’
Apologies for the email, I will try and catch you on Monday.
‘Redacted’ met with Steve today and advised of the offer of a six month fixed term contract level 5.7 (HR validated the level) his response was as follows:
1.He is obviously not happy to take pay cut
2.He will not [sic] accepting the new contract
3.He referred to the previous contract renewal, when he doubled his rate and he threatened to do that again if we called him back
4.He believes he provides more than support services and that he is a consultant – we are confident we can cover this technically
5.We advised that this is the only offer we will be making at this time, and he could use it to look for another contract.
6.We advised his role had been reassessed with the broader business that provided the determination on level and hence why we provided the offer of the FT contract.
7.Post the meeting BATS leadership discussed Steve’s mention of the rate increase and he stated that is what the did last time by doubling his rate. We feel his position is untenable and we are retracting the offer
8.If he intended to be malicious there are some risks in terms of systems access but he had not presented any concern at this stage[42]

In respect of the Applicant’s application and reliance on the email dated 1 December 2017, that email details that the Applicant was not happy to take a pay cut and was not accepting of the new fixed term contract. As of 1 December 2017, I find that the Applicant was clearly aware that he had made an inquiry or complaint regarding the pay rate under the fixed term contract that had been offered. He did not require the email dated 1 December 2017 to advise him of that.

The Applicant gave evidence that he declined the offer made on or around 1 December 2017, but remained open to a more realistic offer.[43] The Applicant further states that no acceptable offer was made.[44] That is, after the Applicant had purportedly made a ‘complaint’ or ‘inquiry’ as those terms are understood in the context of a ‘workplace right’ under the Act, the First Respondent made no further offer. The Applicant submits that the ‘Head of BATS’ kept the retraction of the employment offer (presumedly of 1 December 2017) secret from himself and various colleagues.

Again, the Applicant was aware at this time, being on or around 1 December 2017, that no further offer of employment was forthcoming, the original offer of employment was not pursued by the First Respondent, and the First Respondent did not engage with the Applicant further in respect of the employment offer. Yet, at this time the Applicant did not make a general protections application in accordance with the statutory timeframe. Of course, it should be said that for the purpose of the general protections application, the Applicant did not consider himself dismissed at this point.

Turning to the cessation of the work relationship between the First Respondent and the Applicant on 16 August 2019, the Applicant, at paragraph [26] of his witness statement, gives evidence that at the time the work relationship came to an end, he ‘knew it made no sense and said so at the time’.

Whilst aware that the termination of this work relationship on 16 August 2019 made no sense at the time, it is not apparent that the Applicant took steps at this point to make the general protections application in the requisite period or to make requests of the First Respondent through an FOI request. This is notwithstanding that the Applicant had made a complaint back in December 2017 and had subsequently not been offered a fixed term contract with a revised pay rate in or around that time.

However, it is to be appreciated that the Applicant did, by email dated 20 August 2019,[45] request that the First Respondent reduce to writing the reasons behind the early termination of his contract as at that time (one will recall that at that time the First Respondent considered that the Applicant was a labour hire employee provided by the Second Respondent). The Applicant asked particularly that the First Respondent provide written confirmation that the contract was not terminated due to failure to perform or any form of misconduct on his part.[46]

A representative of the First Respondent emailed the Applicant on 21 August 2019, replying that as had been ‘discussed last Friday, the termination of your contract was a business decision that was based on resourcing restraints.’[47] The email continued that the First Respondent had made the decision to use internal resources to fulfil the scope of work that was originally assigned.[48]

The Applicant again pressed the First Respondent on 21 August 2019, stating, ‘[t]hank you. So nobody raised any issues with myself that led to this decision?’ The response the Applicant received from the First Respondent was that ‘the decision was due to resourcing constraints and I am not aware of any other discussions’.[49]

At this stage of the delay period (that is from the time of the purported dismissal on 16 August 2019 until October 2019), I am satisfied that the correspondence from the First Respondent may have allayed the Applicant’s concerns about the seemingly premature termination of his services, and as such I consider this provides plausible reason as to why the Applicant did not make a general protections application at this time.

The Applicant appears to have secured employment with Avid from October 2019 to October 2021, noting that Avid was an independent contractor to the First Respondent[50] and that most of the work he performed was for the First Respondent.[51]

The Applicant states that in October 2019, the First Respondent harmed his employment with Avid by refusing to grant him the necessary systems access that was provided to others (presumedly other employees or workers) at Avid at that time.[52]

At paragraph [36] of his document titled ‘Statement of Actions’, the Applicant stated, in respect of the situation with Avid:

I was left in the awkward position with my new employer of having to try to explain something suspicious for which I had been given no information. I could only explain to my new manager that I believed it was likely to be a vindictive act by my 2017 manager who objected to my workplace complaint. This was later confirmed to be correct but I did not then understand that it had been done using false allegations.

It is open on the evidence to find that during the period of 2019 to 2021, the Applicant held the view that the First Respondent had harmed his employment with his employer, Avid, due to him having made a workplace complaint when he had worked for the First Respondent in December 2017. This is the case despite the Applicant having received reassurances from the First Respondent on 20–21 August 2019 that the termination of his contract was a business decision based on resourcing restraints. The Applicant took no steps at this time to make a general protections application or to lodge an FOI request.

In or around July 2023[53] or August 2023,[54] the First Respondent is said to have harmed the Applicant’s employment at SG Controls by blocking him from performing work for the First Respondent and disabling necessary systems access. The Applicant stated that the First Respondent had required the work to be carried out by other employees of SG Controls, other than himself.[55] However, the Applicant did not make his first FOI application until 17 August 2023 and did not make the application on foot (his general protections application) until 29 November 2023.

The Applicant has sought to attribute the delay, or at least some part of the period of the delay, on him holding a suspicion that the First Respondent’s actions were retaliatory in light of him having made a workplace complaint, but that there was an insufficient basis on which to initiate an application. However, it is evident that the Applicant may have misconceived the requirements for making a general protections application under s 365 of the Act – which are set out at s 365 of the Act and the Form F8, being the requisite application form, which asks the Applicant to respond to questions asked.

It is correct that in order to make out the ‘general protections cases’, an applicant must demonstrate that the respondent subjected them to ‘adverse action’ and did so because (or for reasons that included that) they had exercised a ‘workplace right’ or ‘workplace rights’.[56] However, as explained in Messenger v Commonwealth:

[t]he reason or reasons actuating conduct that visits “adverse action” are matters of fact that must be proved. An applicant who alleges that he or she was subjected to adverse action for a reason or reasons that Pt 3-1 of the FW Act proscribes is afforded substantial assistance in that regard by s 361. As has been explained, that section creates a rebuttable presumption in an applicant’s favour. If a respondent is alleged to have engaged in conduct for a reason that Pt 3-1 of the FW Act proscribes (and, thereby, to have contravened that part), it is presumed to have acted for that reason unless or until it establishes otherwise.[57]

At the time of making the general protections application there was no requirement under the Act that the Applicant secure evidence of the workplace right.

Returning to the documents obtained through the Applicant’s FOI requests, accompanying the Applicant’s application was a document titled ‘Evidence of Deliberate Deception’. Essentially, the document set out a summary of the Applicant’s case, a chronology, and evidence said to demonstrate the First Respondent’s deception. In the document, the Applicant refers to the email obtained by ‘FOI 880’, and at hearing the Applicant confirmed that he had received the document (that being the email dated 1 December 2017) on 27 October 2023. When asked if this was the only document the Applicant had attached to his application from the FOI documents that related specifically to his alleged workplace right, namely the complaint or inquiry, the Applicant acknowledged this was correct – although he clarified that it was not necessarily the only document he intended to rely upon if his case proceeded.[58]

In my view, the email dated 1 December 2017 is not particularly revelatory given that the Applicant was cognisant, as of 1 December 2017, that he had made a complaint about the rate of pay proffered in the fixed term contract and that the First Respondent had not proceeded to engage with him further regarding the offer of employment at that time. In all the circumstances, that the Applicant was precluded from making his application until such time as he had received the email dated 1 December 2017 pursuant to his FOI request does not, in my view, prove to be a plausible reason for the delay.

If one was to consider that the period of the delay arose due to the Applicant only becoming aware of the ‘real reason’ for the alleged dismissal via the documents obtained pursuant to the FOI requests, which I do not find to be the case, the First Respondent submits that it provided the document subject to the 17 August 2023 FOI request, and on which the Applicant now relies for the purpose of attaching to his application, on 27 October 2023.

Once the Applicant received the email dated 1 December 2017 on 27 October 2023, he did not make the application for a further 33 days, that being 12 days more than the 21-day timeframe. In my view, the Applicant is absent, in this respect, of a plausible reason as to why he waited until 29 November 2023 to make his application, having received the document on 27 October 2023.

Concerning the latter period of the delay, I have also considered the Applicant’s evidence that he emailed the Commission asking for advice in relation to making his claim on 21 November 2023.[59] However, I do not consider that seeking advice in respect of an application provides grounds for a finding of exceptional circumstances. As observed by the First Respondent, it is not a unique circumstance that a self-represented applicant would require time to understand their rights,[60] and to gather evidence.[61]

The Full Bench in Nulty held:

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.[62]

On this basis, any delay between 21 November 2023, when the Applicant emailed the Commission, and 29 November 2023, when the Applicant filed his application, does not provide a plausible reason for the delay (in addition to the other matters raised above).

The evidence shows that the Applicant sought assistance through his local Member of Parliament and thereafter the relevant government Minister. The First Respondent submitted that the Applicant’s engagement with the Minister, that is suggesting he was prepared to hold off and not make an application until that engagement was completed, demonstrated that the Applicant was able to make an application at an earlier time.[63]

The Applicant gave viva voce evidence that whilst waiting for a reply from the Minister (presumedly in respect of his telephone and email communication to his local Member on 23 November 2023) he was prepared not to submit the application if a timely and substantive meeting could be arranged with the Minister to discuss issues.[64] However, the Applicant clarified at hearing that his communication with the Minister was done in parallel with the searching, preparing, submitting and pursuing his work on the application, and his communication with the Minister continued after his application had been made, therefore making it very obvious it was not a cause of delay making the application.[65] I accept the Applicant’s evidence and submissions on this point and do not consider his interaction with his local Member of Parliament and thereafter the offices of the Minister evince that he was able to make his application at an earlier date.

The Applicant submitted that his evidence indicated that he had acted as quickly as anyone could reasonably expect, once the ‘necessary information’ to support a case (presumedly a general protections application) was available to him. He said that the evidence showed that he was very keen for the case to progress without unnecessary delay and the substantial delays in making his application were not caused by him dragging his feet.

What the evidence shows is that the Applicant did not make the first FOI request until 17 August 2023, some 1,462 days after the alleged dismissal on 16 August 2019, being 1,441 days after the deadline to make a general protections application, despite stating that he had ‘long suspected that the actions taken against [him] were in retaliation for [his] workplace complaints of 1 December 2017’.[66] However, as observed, I find that up until October 2019, the Applicant had a plausible reason for having not made the general protections application up until that point.

Although I am appreciative of the Applicant’s distress and frustration regarding the First Respondent’s failure in August 2019 to communicate to him directly that his purported acceptance of a ‘trip’ from a contractor of the First Respondent may have formed part of the reason for the premature cessation of his contract at that time (noting that arguably such circumstance may not give rise to a ‘workplace right’), I do not consider the matters relied upon by the Applicant, individually or together, to be an acceptable or reasonable explanation for the whole period of the delay in filing his application.

For the above reasons, I find that the Applicant has not provided plausible reason or reasons for the entire period of the delay in making his application. It follows that there is not a credible explanation for the entirety of the delay albeit a relatively small period of the delay is reasonably explained.

On balance, and in the circumstances of this particular case, I find the reason for the delay is not an acceptable one. This weighs against a finding of there being exceptional circumstances.

3.3 Action taken to dispute the dismissal

The Applicant submitted he had verbally pointed out to attendees at the ‘dismissal meeting’ in 2019 that the reason provided for his dismissal made no sense to him.

As has been identified, by email dated 20 August 2019,[67] the Applicant requested that the First Respondent reduce to writing the reasons behind the early termination of his contract. The Applicant particularly asked that the First Respondent provide written confirmation that the contract was not terminated due to his failure to perform or any form of misconduct on his part.[68]

A representative of the First Respondent emailed the Applicant on 21 August 2019, replying that the termination of the Applicant’s contract ‘was a business decision that was based on resourcing restraints.’ The email continued that the First Respondent had made the decision to use internal resources to fulfil the scope of work that was originally assigned.

The Applicant again pressed the First Respondent on 21 August 2019, stating, ‘[t]hank you. So nobody raised any issues with myself [sic] that led to this decision?’. The response the Applicant received from the First Respondent was that ‘the decision was due to resourcing constraints and I am not aware of any other discussions’.[69]

The word ‘dispute’ is a common word of everyday usage and can also be located in the Act (albeit not defined). When considering the meaning of the word ‘dispute’ in the context of a dispute resolution procedure in an enterprise agreement, the Federal Court observed that the New Shorter Oxford English Dictionary defined the word as follows:

dispute (noun)
1 a) A logical argument. rare. b) An oral or written discussion of a subject in
which arguments for and against are put forward and examined.
2 An instance of disputing or arguing against something or someone, an
argument, a controversy, esp. a heated contention, a disagreement in which
opposing views are strongly held.
3 The act of disputing or arguing against something or someone;
controversy, debate.
4 Strife, contest; a fight, a struggle.

dispute (verb)
1. Contend with opposing arguments or assertions; argue; debate hotly, quarrel, have an altercation.[70]

The essence of that meaning is that there is an occasion during which there is an exchange of ‘opposing views’ or positions — the necessity is for there to be an exchange of positions ‘for and against’ a particular result.[71] There is of course no necessity for a dispute to be heated or confrontational.

In the current context, there appears to be no reason why the word should be given anything other than its ordinary English meaning.

The First Respondent submitted it recognised the Applicant took some steps following his alleged dismissal to enquire about the reasons for it, such that he wrote emails to enquire about the reason. However, other than that, the First Respondent considered the Applicant had taken no steps to challenge his purported dismissal.

When the steps taken by the Applicant are considered in the context in which they were taken, and in light of the ordinary meaning of the word ‘dispute’, it is somewhat difficult to conceive that the Applicant ‘disputed’ his ‘dismissal’. However, what is evident is that the Applicant sought the reason or reasons for the early cessation of his contract – that is he pressed for clarification as to why the contract had ended in such close proximity to its start. It does not appear that he argued against the ‘dismissal’ but rather wished to understand why it had occurred.

In the circumstances and noting the fine line between dispute and enquiry, on balance, I consider this factor to be neutral – weighing neither toward nor against a finding of exceptional circumstances.

3.4 Prejudice to the employer

The First Respondent submits that the significant delay has caused it to suffer prejudice. The relevant prejudice is one that would not have been suffered had the application been made within 21 days of the dismissal taking effect.

In support of its proposition, the First Respondent referred the Commission to the decision of the Full Bench in GHD Pty Ltd v Black (GHD), in which it was held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[72]

At paragraph [51] of GHD, the Full Bench expressed that it was well accepted that a lengthy delay gives rise to a general presumption of prejudice,[73] stating:

The 168-day delay in Mr Black’s general protections application can only be described as lengthy. A relevant prejudice is one that GHD would not have suffered, had the application been made within 21 days of the dismissal taking effect.[74] Having regard to the contentions made by Mr Black in his general protections application, and his reliance upon alleged discussions and meetings, it is conceivable that, consistent with GHD’s submissions, a significant delay of 168 days may impair the recollection or availability of GHD’s witnesses and thereby give rise to a relevant prejudice. (footnotes omitted)

The First Respondent submitted that many of the relevant employees of the First Respondent who were engaged in the relevant positions at the time of the alleged adverse action are no longer employed, meaning the First Respondent no longer has access to the people it would otherwise call as witnesses in the proceedings. Further, it noted that extensive time had passed since the events such that those still employed by the First Respondent have impaired recollections of the events, particularly given the brief nature of the relevant 2019 engagement and ‘dismissal’.

The Applicant submitted that GHD was substantially different to the proceedings on foot and that the delay in that case was weighed against very different factors that were not currently relevant. Insofar as the First Respondent had claimed that it no longer had access to the people it would call as witnesses, the Applicant said that whilst this might be true if anyone relevant had died in the last few years, the rest of the witness could be called.

The Applicant further submitted that there was an extensive contemporaneous record available via email trails and that the First Respondent had a responsibility to retain such records. According to the Applicant, if the First Respondent had acted correctly in maintaining those records, then it could not suffer a disadvantage.

In terms of the recollection of witnesses, the Applicant identified that the manager who had been present in the meeting of December 2017, did not appear to have any difficulty recalling the meeting and her information had been relied upon by the First Respondent and placed in its response form to the application.

I accept the general proposition advanced by the First Respondent that a lengthy delay may impair the recollection or availability of a witness and thereby give rise to a relevant prejudice. In this matter the delay is significant. Some four years having passed since the work relationship with the First Respondent came to an end (the purported dismissal in 2019).

The Applicant refers to a manager in the meeting of December 2017 essentially being a key witness and, to the effect, that her memory appears intact. However, the First Respondent refers to a decision being made in 2019 concerning the use of the Applicant’s services and that in 2023 it had requested SG Controls not to use the Applicant. It is not apparent from the materials filed that the manager referred to in the December 2017 meeting made the decision in 2019 or took the action regarding the Applicant in 2023. It is therefore not unreasonable to conclude that there will be more than one witness that the First Respondent may wish to call, hence its reference in its submissions that many of the relevant employees of the First Respondent who were engaged in the relevant positions at the time of the alleged adverse actions (as set out in the Applicant’s application) are no longer employed.

The length of time that has passed in respect of the delay, the protracted nature of the dispute – spanning over some six years with events unfolding in 2017, 2019 and 2023, and the potential involvement of witnesses who are no longer in the employ of the First Respondent, are all factors that steer toward a finding that the First Respondent would suffer prejudice that it otherwise would not have been subjected to, had the application been made within the requisite statutory period.

Whilst the Applicant correctly points out that the circumstances in GHD are different to his application, the proposition expressed in GHD that a lengthy delay gives rise to a general presumption of prejudice, is sound and undisturbed. The delay is significant and for the reasons cited, particularly those at paragraph [98], I find that the First Respondent would suffer prejudice that it would not otherwise have experienced had the application been made in time. This factor weighs against a finding of exceptional circumstances.

3.5 Merits of the application

In Telstra-Network Technology Group v Kornicki,[75] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:

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.[76]

The Applicant provides a succinct account of the gravamen of his case in his Form F8, where he states that the basis of his argument is that a series of adverse actions were taken against him over a period of six years, including dismissal, as a result of him exercising a protected workplace right. The Applicant identifies that right as being able to make a complaint to his manager at the time about a proposal to cut his pay rate by approximately 40 percent (December 2017 meeting).

The First Respondent holds the view that the application has no reasonable prospects of success for the following reasons.

A dismissal-related general protections claim requires three elements to be established. First, there must be a workplace right, and the onus is on the Applicant to prove that he had, had exercised, or proposed to exercise, the workplace right. Second, the Applicant must be able to show adverse action was taken against him. Third, the adverse action must be taken for, or for reasons that included, a prohibited reason. As already observed, the Act contains a statutory presumption that the adverse action was taken for the prohibited reason and the First Respondent has the onus of establishing that the alleged prohibited reason was not taken into account.

The First Respondent submits that the application fails on the first and third elements, noting that the legal status of the Applicant at the time he declined the offer and raised the issue of the pay rate in the offer was as a prospective and not an existing employee. The First Respondent contends that the Applicant was therefore not capable of making a ‘complaint or inquiry’ in relation to his ‘employment’, as any ‘complaint’ about proposed rates of pay in an offer of employment could not constitute a workplace right within the meaning of s 341(c)(ii) of the Act.

However, the First Respondent added that even if the Applicant was found to be an employee at the relevant time in December 2017 (as opposed to an independent contractor engaged by Cad Nauseum), including if it is found that there is a sham arrangement, which is denied by the First Respondent, any ‘complaint or inquiry’ was solely in relation to the ‘new offer of employment’ and the rate in that offer. There was, submitted the First Respondent, no suggestion that the Applicant’s existing terms and conditions would change, only that the new employment would be on an alternative basis. The First Respondent concluded that for the purpose of the alleged ‘complaint or inquiry’, the Applicant was at all times a prospective employee and not capable of exercising a workplace right under s 341(1)(c)(ii) of the Act.

Regarding the second element, the First Respondent submitted that there is no issue that the Applicant was dismissed in 2019 – the issue in dispute between the parties is who was the employer and the status of the First Respondent. The First Respondent observed that this was not a matter that needed to be resolved at this stage of the application.

However, on the third element, being the reason for the alleged dismissal, the First Respondent argues that there is no evidence before the Commission, nor did any of the FOI documents establish, that the First Respondent dismissed the Applicant because of a reason prohibited by Part 3-1 of the Act, as alleged or at all, including that the decision to cease the Applicant’s engagement in August 2019 was in any way a result of the alleged workplace complaint made in 2017 (noting the First Respondent denies such complaint was capable of being made). Rather, the Applicant simply makes generalised statements that he can prove his case and that the First Respondent deceived him in relation to the real reasons for the dismissal.

The Applicant referred to the documents filed in the lead up to the hearing in support of his contention that his application had merit, and submitted that he had only filed a subset of the documents that he would submit in the main hearing if the case was allowed to proceed.

Briefly stated, there are contested issues of fact and law which the Commission is not positioned to determine at this stage. This is unremarkable given evidence on the merits is rarely called at an extension of time hearing. As a result, at this stage, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge their application.[77] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the ‘dismissal’ if an extension of time were granted and the matter proceeded.

Whilst the First Respondent’s submissions on this factor are plausible and I am of the view that the Applicant’s argument, as set against a framework of ss 340 and 365 of the Act, is difficult in parts to comprehend, I nevertheless consider this factor neutral given the factual dispute on foot. Whilst I am unable to conclude that the application has no merit, for the abovementioned reasons I consider that the factor proves neutral insofar as it weighs neither toward or against a finding of exceptional circumstances.

3.6 Fairness as between the applicant and other persons in a similar position

The Full Bench in Perry v Rio Tinto Shipping Pty Ltd considered this criterion in respect of an application made under s 365 of the Act, and held:

Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.[78]

For the reasons that follow, I consider this factor to be neutral – that is neither weighing toward or against a finding of exceptional circumstances.

The First Respondent submitted that if the Commission was minded to accept that there were exceptional circumstances for the delay in making the FOI request or request, then the delay between receiving all relevant documents by 27 October 2023 and the further delay until after additional documents were received on 23 November 2023, is analogous to circumstances as described in the decision of Byrnes v Department of Broadband, Communications and the Digital Economy (Byrnes).[79]

In Byrnes, a case similarly involving an extension of time request in respect of an application under s 365 of the Act, the applicant pressed that the delay (64 days after the expiry of the 60 day period that was previously allowed by s 366(1) of the Act) was occasioned, in part, by his hospitalisation and by being unaware of his ability to make a general protections application – until after he had received documents through an FOI application that had been made by a journalist who wished to write a media article about him.[80]

To further explain, a journalist had approached the applicant with the intent of writing an article about the applicant’s dismissal and as such obtained the applicant’s permission to make an FOI application. The applicant gave evidence that on or about 30 June he had received some 1000 pages of documents subsequent to the FOI application and had to research his legal position.

The Commissioner accepted that part of the delay in making the application could be attributed to the applicant’s ill health and hospitalisation. However, the period that passed before the FOI documentation was made available, did not constitute a sufficient reason for the delay. The Commissioner reasoned that this was because the applicant tendered no evidence to show that the documentation made available under the FOI application had provided the basis for the claim that was unknown to the applicant prior to sighting the documentation.

In the present case, the Applicant has relied for the purpose of his application on the email dated 1 December 2017, which was obtained through his FOI request.

The First Respondent submitted the FOI documents provided to the Applicant on 23 November 2023 provided no additional information relevant to the 2019 alleged dismissal, and as such, this did not constitute exceptional circumstances for the delay (at the very least) from 27 October 2023, in circumstances where the Applicant already had the information required to bring the claim in relation to the dismissal-related general protections application.

However, for the reasons that follow, the matter before me is distinguishable from Byrne. First, for reasons already provided, I do not consider that there was a legitimate reason for the Applicant to have delayed making the general protections application until such time as he had received documentation pursuant to the FOI request(s). On this point, I note in particular that notwithstanding the Applicant’s reliance on the email dated 1 December 2017 for the purpose of making his application, I am not convinced it was necessary to delay the making the application until such time as that email was obtained because of the reasons set out at paragraphs [48] to [51] of this decision. Second, whilst it was the case that the Applicant relied on documentation that had been provided under the FOI application, as he had attached the email dated 1 December 2017 to his application, the Applicant had received that email on 27 October 2023. Therefore, at the very minimum, no plausible explanation had been provided to explain the delay between 27 October 2023 and 29 November 2023 (when the general protections application was made).

Conclusion

The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.

Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. No factors weigh in favour of granting an extension, two weigh against and the remainder are otherwise neutral. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

Whilst appreciative of the current difficulties experienced by the Applicant regarding the First Respondent’s purported decision to deny the Applicant access to it systems directly or through a third party, for an alleged contravention of its ‘gift policy’ that happened in June of 2017 (some six years ago), I do not consider it fair and equitable to extend the time in which the Applicant could make his application under s 365 of the Act, in light of the findings reached and conclusions drawn.

It should not be concluded that the findings reached indicate that the First Respondent’s prolonged and continued preclusion of the Applicant from working on its systems as detailed in this decision, presents as reasonable in all the circumstances. However, it remains that the circumstances are not exceptional and again, notwithstanding my observation regarding the continued preclusion of the Applicant from using the First Respondent’s systems, I do not consider it fair and equitable that time should be extended.

I would also note that at this point it should be apparent that the Second Respondent had very little to say regarding the issue of an extension of time. Whilst the Second Respondent filed a Form F8A, it essentially set out that the Applicant had not identified any exceptional circumstances that warranted an extension of time. The Second Respondent did not elaborate on the point and submissions made at hearing added little to what had already been broached in its Form F8A.

DEPUTY PRESIDENT

Appearances:

S Johnson, Applicant
R Dawson for the First Respondent
A Iliades for the Second Respondent

Hearing details:

2024.
Perth (by telephone):
11 January.

[1] Fair Work Act 2009 (Cth) s 366(1)(a).

[2] Ibid s 366(1)(b).

[3] (2022) 321 IR 160, 165 [15].

[4] Ibid.

[5] Ibid 165 [17].

[6] Ibid.

[7] PR770379.

[8] Witness Statement of Steven Jeffrey Johnson, [1]–[2] (Johnson Statement).

[9] Ibid [2].

[10] Ibid [3].

[11] Ibid [4].

[12] Ibid [5].

[13] Ibid [6].

[14] Ibid [9].

[15] Ibid [10].

[16] Ibid.

[17] Ibid [11].

[18] Ibid [12].

[19] Ibid.

[20] Ibid [13].

[21] Ibid [21].

[22] Ibid.

[23] Ibid [22].

[24] Ibid [33].

[25] Ibid [34].

[26] Ibid [34]–[38].

[27] Ibid [37].

[28] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].

[29] Ibid [21].

[30] (2011) 203 IR 1, 6 [15] (Nulty).

[31] Ibid 5 [13].

[32] Ibid 5–6 [13].

[33] (2018) 273 IR 156, 165 [38] (emphasis in original).

[34] [2018] FWC 3403.

[35] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].

[36] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[37] Ibid [39].

[38] Ibid.

[39] Johnson Statement (n 8) [21].

[40] Ibid [24].

[41] Ibid [25].

[42] Digital Hearing Book, 280 (DHB).

[43] Johnston Statement (n 8) [6].

[44] Ibid.

[45] DHB (n 42) 173.

[46] Ibid.

[47] Ibid 176.

[48] Ibid.

[49] Ibid.

[50] Johnson Statement (n 8) [10].

[51] Ibid.

[52] Ibid [11].

[53] Statement of Actions, [7]; ibid [13].

[54] Johnston Statement (n 8) [13].

[55] Ibid.

[56] Messenger v Commonwealth [2022] FCA 577, [132].

[57] Ibid [151], quoting Wong v National Australia Bank [2021] FCA 671.

[58] Transcript of Proceedings, Johnson v Water Corporation (Fair Work Commission, C2023/7473, Beaumont DP, 11 January 2024) [PN156] (Transcript).

[59] DHB (n 42) 207.

[60] See Nulty (n 30) 8–9 [23].

[61] Gillespie v Kin Property Pty Ltd [2019] FWC 5503, [20].

[62] Nulty (n 30) 6 [14].

[63] First Respondent’s Outline of Submissions, [42].

[64] Transcript (n 58) [PN90].

[65] Ibid [PN89].

[66] Johnson Statement (n 8) [21].

[67] DHB (n 42) 173.

[68] Ibid.

[69] Ibid 176.

[70] Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [No 2] (2020) 298 IR 447, 467 [62].

[71] Ibid.

[72] [2023] FWCFB 38, [51].

[73] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556; Brodie-Hanns v MTV Publishing Ltd

(1995) 67 IR 298, 299–300

[74] Clarke v Service to Youth Council Inc [2013] FCA 1018, [31].

[75] (1997) 140 IR 1.

[76] Ibid 11.

[77] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].

[78] [2016] FWCFB 6963, [41].

[79] [2012] FWA 7744.

[80] Ibid [15].

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Citations

Steven Jeffrey Johnson v Water Corporation & The Trustee for the DFP Business Trust [2024] FWC 147

Cases Citing This Decision

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Cases Cited

17

Statutory Material Cited

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Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 1) [2022] FCA 577

Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989

Evans v Trilab Pty Ltd [2014] FCCA 2464