Xing Cai (William) Dong v Stegbar Pty Ltd T/A Stegbar

[2015] FWC 5808

[2015] FWC 5808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Xing Cai (William) Dong
v
Stegbar Pty Ltd T/A Stegbar
(C2015/3260)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 21 AUGUST 2015

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Xing Cai (William) Dong (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 8 July 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that the termination of his contract to provide services to Stegbar Pty Ltd T/A Stegbar (Stegbar – the Respondent) in August 2013 was in contravention of the general protections provisions of the Act. As the application had been lodged almost two years outside the statutory timeframe for lodgement, the Commission issued Directions on 14 July 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The application was the subject of a telephone hearing on 13 August 2015. At the hearing the Applicant appeared on his own behalf, while Ms Julie Chesterfield, the Work Health and Safety & Employment and Human Resources Adviser for JELD-WEN Australia (the Respondent’s parent company) in Victoria, South Australia and West Australia, appeared for the Respondent.

[3] For the reasons set out below I have concluded that 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.

Background

[4] The Applicant commenced working with the Respondent in late February 2013 as a subcontract glass installer under a contract between the Respondent and the Applicant’s company, XD House Pty Ltd. Specifically, the Applicant was engaged to install wardrobes and shower screens on behalf of the Respondent.

[5] On 9 July 2013 the Respondent wrote to the Applicant giving formal notification of its intention to terminate the contract between it and the Applicant’s company. That letter stated that the termination of contract would take effect on 8 August 2013 and that until that time work may be made available to the Applicant on a daily basis. The letter further indicated that if the Applicant wished to pursue such work that he should call his Supervisor advising of his availability and enquiring about the availability of work at least 24 hours prior to a standard working day.

[6] In his application, Mr Dong stated that it was shortly after he sent an email to his Supervisor on 3 July 2013 suggesting that the Respondent review its terms and conditions of sale that he received the abovementioned letter providing notice of the termination of his contract. Mr Dong also stated in his application that he contacted his Supervisor between 9 July and 9 August 2013 regarding the availability of work but that he was not allocated any work during that period. Mr Dong alleged in his application that Stegbar had contravened s.358 of the Act which deals with dismissing an employee in order to engage the individual as an independent contractor to perform the same or substantially the same work under a contract for services.

[7] As previously noted, Mr Dong’s general protections application was lodged with the Commission on 8 July 2015.

The Relevant Legislation

[8] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(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.”

Whether to allow a further period for the application to be made

[9] 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. I will deal with each of those matters separately.

(a) The reason for the delay

[10] In his application Mr Dong submitted that he did not lodge his general protections application until two years after he received the notice of termination of his contract as he continued to work in the glass industry and as such needed to continue to purchase glass from the Respondent. Mr Dong reiterated that reason in his written submissions, adding that he was concerned that lodging his general protections application earlier may have affected his business when purchasing glass from the Respondent.

[11] At the hearing, in response to a question from the Commission, Mr Dong acknowledged that he could use other glass suppliers and stated that he needed more than one supplier, with JELD-WEN Glass Australia Pty Ltd being his second supplier. Mr Dong also submitted that he was not aware of the 21 day timeframe for making a general protections application and that he had not contacted the Commission after receiving notice of the Respondent’s intention to terminate his contract.

[12] The Respondent submitted in its Form F8A response that the relationship between it and the Applicant was always an independent contractor arrangement and that at no point in time was there any discussion with the Applicant to change the relationship to one of employee. Accordingly, the Respondent submitted that s.358 of the Act is irrelevant in this case.

[13] The Respondent also submitted that it had no recollection of the Applicant making contact with the business during the notice period, i.e. 9 July through to 8 August 2013, seeking work. Therefore no work could be allocated to the Applicant during that period. The Respondent further pointed to clause 8 of the Agreement for External Contract Services Installation Fitters signed between the two parties which provided that “The Principal does not guarantee that it will require the Contractor to provide the Services at any particular time, frequency or at all.”

[14] At the hearing the Respondent submitted that it would be silly business sense for it to refuse to sell glass to a former contractor. The Respondent further submitted that it has no knowledge of who JELD-WEN Glass Australia Pty Ltd sells glass to and that it continues to sell materials to former contractors. The Respondent also contended that it did not believe there was a valid reason for the delay in the Applicant lodging his application.

[15] It is not clear on what basis the Applicant believed that he could lodge his application almost two years after his contract had been terminated. To the extent that he held such a view, it was completely incorrect. Further, his concerns that the Respondent would have refused to sell glass to either him or his company were he to have lodged his application shortly after his contract had been terminated appear somewhat misplaced. Also relevant is the Applicant’s acknowledgement at the hearing that he did not contact the Commission prior to lodging his application to discuss the termination of his contract by the Respondent and that he was not aware of the 21 day timeframe.

[16] Taken together, the reasons for the delay relied upon by the Applicant in no way support a finding that there were exceptional circumstances in this case.

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

[17] At the hearing the Applicant submitted that he accepted the Respondent’s termination of the contract with his company.

[18] The Respondent did not address this factor.

[19] Based on the material before the Commission it is clear that the Applicant did not dispute the termination of his contract prior to lodging his application. This does not support a finding that there were exceptional circumstances.

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

[20] The Applicant did not address this factor.

[21] The Respondent submitted that it did not know if it would be prejudiced were an extension of time to be granted in this case.

[22] Against that background, I consider this factor to be a neutral consideration.

(d) The merits of the application

[23] The Applicant did not directly address this factor. Significantly, the Applicant made no submissions to substantiate how the termination of his contract contravened s.358 of the Act as alleged in his application.

[24] As previously mentioned, the Respondent submitted in its response that the relationship between it and the Applicant was always an independent contractor arrangement and that, as such, s.358 of the Act is irrelevant in this case.

[25] It is not disputed that the Applicant was engaged as a subcontractor by the Respondent. In those circumstances it is difficult to envisage how the Respondent could have contravened s.358 which deals with dismissing an employee in order to engage the individual as an independent contractor to perform the same or substantially the same work under a contract for services.

[26] Beyond this, I note that:

(i) clause 10.1 of the Agreement for External Contract Services Installation Fitters provides that “either party may terminate this agreement by giving one (1) month’s written notice or such other period of notice as may be agreed in writing from time to time”; and

(ii) no submissions and/or evidence were provided to support the Applicant’s contention that the Respondent failed to provide him with work during the notice period for a reason which contravened the general protections provisions of the Act.

[27] Based on the material before the Commission, the application appears to be totally devoid of any merit. This does not support a finding of the existence of exceptional circumstances.

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

[28] Neither party made any submissions in relation to this factor. Accordingly, I consider it to be a neutral consideration.

Conclusion

[29] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1 (Nulty) in the following way:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”

[30] Having considered all of the factors set out in s.366(2) and drawing on Nulty, 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).

[31] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1   [2011] FWAFB 975

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