Fair Work Commission|2021-09-30

the Applicant was not 'dismissed' as that term is understood by reference to ss 12 and of the Act;

if I am wrong about the Applicant having not been dismissed, then having considered the factors in s 366(2), I find on balance that the circumstances are not exceptional and therefore decline to grant an extension of time under s 366(2).

[11] Both parties to the application were self-represented. There was a commingling of submission, assertion and fact, and neither party filed witness statements but sought to rely upon emails addressed to Chambers and various documents. However, the following can be gleaned from the materials.

[12] On 24 June 2021, the Applicant was issued with a letter offer from the Respondent in the following terms:

Techforce Personnel Pty Ltd (Techforce Personnel) has recently partnered with People Infrastructure Limited... and following that the Techforce business will be transferred to Techforce Staffing Services Pty Ltd ... with effect from 01 July 2021...

You are presently engaged by Techforce Personnel Pty Ltd on a casual basis.

I am pleased to inform you that Techforce Staffing Services Pty Ltd wishes to offer you employment on the following terms with effect from the Completion Date:

These terms will be effective from 1 July 2021 and will apply to the casual work you perform for Techforce Staffing Services following Completion or on your first rostered casual shift after the Completion Date.

[13] The letter of offer of 24 June 2021 was accompanied by a 'Contract of Employment Letter (Casual Employees)', which set out:

Techforce Staffing Services Pty Ltd (the Company) is pleased to offer you casual employment in the position of Hose Hand (Your Role). As a casual employee the Company makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work to you and you agree to accept the offer of employment on that basis and that you will become an employee of the Company on that basis.

[14] A 'Special Conditions Schedule' was similarly attached setting out that the Applicant's role was as a 'Hose Hand' and the client was Cleanaway located at Henderson WA 6166. The 'Company Administrator Contact' was cited as 'admin@techforce.com.au' and the hours of work were to be directed by the 'Company'.

[15] What appears to be the general conditions of employment, set out, among other things:

You are employed by the Company to provide your services to the Company's Client on a contract services basis. Details of the duties and work location for Your Role will be as set out in the Special Conditions or communicated to you separately by the Company from time to time. You agree that you will faithfully and diligently, in full compliance with Company directions perform the duties associated with Your Role as amended from time to time and to work as directed by the Company. Your work location is specified in the Special Conditions. You may be required to travel to various work locations.

[16] The Applicant admitted that he had received the contractual documentation and had signed the same.

[17] Included within the Respondent's bundle of documents was an email dated 26 March 2021 from a representative of the Respondent to the Applicant informing him that he had been accepted to work with Cleanaway - Kwinana. The Applicant was directed that should he have any questions he should ask the author of the email who was the Recruitment & Mobilisation Coordinator for Techforce Personnel Pty Ltd, at that time.

[18] The Respondent tendered into evidence the commercial agreement between Techforce Personnel Pty Ltd and Cleanaway (Temporary Labour Supplier Panel Services Agreement). At clause 6 of the Temporary Labour Supplier Panel Services Agreement, Cleanaway was permitted to provide written notification requesting the removal of the Respondent's personnel from further performance of services if Cleanaway had formed a reasonable opinion that the performance of the service provider personnel was unsatisfactory.

[19] The Respondent noted that included in its bundle of documents was an email dated 29 July 2021, received from the Contingent Labour Coordinator at Hays Talent Solutions, informing the Respondent that the Applicant was no longer required at the Cleanaway site and that he had been flagged as a 'do not rehire'.

[20] The Applicant referred to having had a meeting with a Ms Heather Robinson, the Key Account Manager of the Respondent, on 13 August 2021, and sending her a letter on 16 August 2021, which outlined among other matters:

I would like to thank you for meeting last Friday morning, the 13th August, in your office where I reported an unfair work-place incident that took place on Thursday, the 29th July, at ASC, Henderson, where:

I was unfairly dismissed by Cleanaway for allegedly failing a drug and alcohol test.

I neither drink alcohol nor engage in illegal drugs. There was no test. This is an obvious case of unfair dismissal, causing me loss of work for the last fortnight.

Accordingly, to prevent this matter from going any further, I would ask Techforce and Cleanaway to reinstate my old job, or at the very least, offer me a similar position with the same pay and conditions.

[21] Both parties were provided with guidance regarding what was required to be addressed at hearing. Notwithstanding, submissions provided by both were of limited assistance.

[22] The Applicant submitted that the matter had been extremely confusing regarding who was the actual Respondent, but his intention was to file the application on time and that was obvious. He continued that the fact he had lost his employment without any reasonable reasons to date should be a good enough valid reason to be heard in the matter.

[23] The Applicant argued that the Respondent (a labour hire company) had set up their operation when providing labour hire for the purpose of confusing and misleading their employees and there was no evidence in any contract as to who was the actual employer when somebody had been dismissed. The Applicant questioned why the Respondent had not contacted him immediately following the incident at Cleanaway.

[24] As to his personal circumstances, the Applicant reiterated that English was his second language, his father had passed in the relevant period, he had another legal case to prepare in the Western Australian Family Court, his mother had been diagnosed with dementia and he was living in a campervan.

[25] The Respondent did not accept that the Applicant was confused by whom his employer was. It observed that the Applicant applied for a job with the Respondent, and he understood clearly that he had accepted a casual assignment working on-site at Cleanaway working for the Respondent. He met with the Respondent prior to commencement and multiple emails and conversations between the Applicant and Respondent's Account Managers during the Applicant's employment confirmed that the Applicant was very clear about who his employer was.

[26] The Respondent pressed that it had been made very clear in pre-employment verbal and written communication with the Applicant that his employer was the predecessor to the Respondent and that he was being assigned to work on a host site - namely Cleanaway.

[27] The Respondent continued that the Applicant was advised when the acquisition occurred and was notified of the offer of employment from his new employer and sent an employment contract. The Applicant signed and returned the contractual documents to the Respondent via email. According to the Respondent, the employment contract was clear on who the Applicant's employer was, as were his payslips. Insofar as the payslips were concerned, the Respondent observed that Hays Recruitment was listed on the payslip as the Client. Hays Recruitment was said to have become the 'Neutral Vendor' for Cleanaway (the master vendor) on 15 August 2019.

[28] To the extent that the Applicant was a casual employee, the Respondent observed that the Applicant's contract outlined very clearly that the Respondent did not guarantee any hours of work or the frequency of any future engagements.

[29] According to the Respondent, the Applicant was made immediately aware that his assignment had ended on 29 July 2021. The Applicant did not return to Cleanaway's site and the Applicant contacted the Respondent on 13 August 2021, as he was still disgruntled about his assignment ending on 29 July 2021 and wanted to explore if there was any option for him to return to site. The Respondent asserted that it advised the Applicant that a return to the Cleanaway site was not possible due to Cleanaway advising the Respondent that he would not be permitted to return.

[30] The Respondent noted that the Applicant was offered further work in an email on 26 August 2021. The Respondent continued that it emphatically denied the Applicant's version of events, submitting that on 29 July 2021, at Cleanaway's request, the Applicant was removed following an incident on Cleanaway's site where the Applicant was involved with a female employee. The Respondent noted that the Applicant was interviewed regarding the incident and following this Cleanaway requested his removal from site under its commercial agreement with the Respondent.

[31] The Applicant referred to having had a meeting with a Ms Heather Robinson, the Key Account Manager of the Respondent, on 13 August 2021, and sending her a letter on 16 August 2021 which outlined among other matters:

I was unfairly dismissed by Cleanaway for allegedly failing a drug and alcohol test.

I neither drink alcohol nor engage in illegal drugs. There was no test. This is an obvious case of unfair dismissal, causing me loss of work for the last fortnight.

[32] From the materials presented, I am not satisfied that the Applicant was dismissed as understood by reference to ss 12 and 386 of the Act.

[33] It is evident from the direct evidence presented that the Applicant was employed on a casual basis with the Respondent and that there was no guarantee of ongoing assignments with host clients. The contractual documentation was explicit in its terms in this respect. There was no evidence advanced to negate that the contractual documentation did not mirror what occurred in practice - a labour hire arrangement.

[34] The Respondent submitted that having been removed from the Cleanaway site, the Respondent informed the Applicant it would look for further assignments, and in fact offered a further client assignment to the Applicant toward the end of August 2021. The Applicant conceded that such offer was made, but in his view, its terms were not the same or more favourable than those on the Cleanaway assignment, and he therefore declined the offer. It is difficult to ascertain whether this was the case regarding the terms and conditions, in the absence of direct evidence.

[35] From the evidence and submissions presented, the finding which is open is that whilst the assignment with Cleanaway ended, the employment relationship and contract with the Respondent had not. That relationship and contract remained on foot. There was no termination of the Applicant's employment at the initiative of the employer and the submissions advanced and evidence tendered, do not support a conclusion that the Respondent engaged in a course of conduct that left the Applicant with no choice but to resign. In such circumstances, these conclusions create an insurmountable jurisdictional hurdle necessitating the dismissal of the Applicant's application.

[36] However, if I am wrong on this point regarding the Applicant having not been dismissed, out of an abundance of caution, I will consider whether to extend the 21-day period within which the application can be made. Whilst observing that I do not consider that the Applicant was dismissed, if he was, then the date that the dismissal took effect was the 29 July 2021.

[37] In his first general protections application, the Applicant was clearly of the view that the end of his assignment with Cleanaway on 29 July 2021, constituted the date that his dismissal took effect as he had notated that the application was one day late. The Respondent similarly submitted that 29 July 2021 would be the relevant date for such purpose. As this was the last day on which the Applicant worked for the Respondent, and in light of the submissions of the parties, I am content to find that 29 July 2021 was the date the Applicant's dismissal took effect.

[38] In respect of the general protections applications that were made, it was the second application that was directed to the Respondent and therefore it follows that the application was made on 11 September 2021. However, the first general protections application and the unfair dismissal application are not irrelevant. Both will of course be considered when thought is given to the Applicant's reasons for the delay in making the second application.

[39] In order for the Application to now 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:

(b) any action taken by the person to dispute the dismissal; and

(e) fairness as between the person and other persons in a similar position.

[40] It has been said that proceedings not commenced in time should not be entertained.[1] 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.[2]

[41] In the decision of Cheyne Leanne 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.[3] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[42] 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.[4] 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.[5]

[43] In the decision of the Full Bench in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, clarification was provided 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.[6]

[44] 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.

[45] In Aaron Pottenger v Department of Caffiene T/A Two Feet First,[7] the Deputy President 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,[8] or a reasonable explanation.[9]

[46] The absence of an explanation for any part of the delay, will usually weigh against an applicant in such an assessment.[10] Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, it is a question of degree and insight.[11]

[47] The Applicant's reasons for the delay rely in part on his confusion as to the identify of his employer. His argument however is flawed. The Applicant filed his first general protections application on 20 August 2021. Prior to that date, by his own evidence, the Applicant admits that he arranged a meeting with Ms Robinson, a representative of the Respondent, on 13 August 2021, and thereafter wrote to her by letter of 16 August 2021. Both dates pre-dating the date of filing the first application and the evidence showing more likely than not that the Applicant knew who his employer was.

[48] In that same correspondence the Applicant referred to the case as '[T]his is an obvious case of unfair dismissal, causing me loss of work for the last fortnight. Accordingly, to prevent this matter from going any further, I would ask Techforce and Cleanaway to reinstate my old job'. The Applicant demonstrated an awareness of 'unfair dismissal' and included a veiled assertion of taking the matter further should he not be reinstated by the Respondent on the client site.

[49] While English may be the second language of the Applicant, it is evident that a language barrier did not hinder him in setting up a meeting with the representative of the Respondent, writing to the Respondent regarding that meeting and referring to an 'unfair dismissal' in that same correspondence. In my view, a language barrier is not a factor that warrants special consideration in this case.

[50] In the decision of Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of 'exceptional circumstances', it was said that:

[I]n 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.

[51] While Nulty referred to the ignorance regarding the statutory time limit, the observation made was that an employee, who is aggrieved at being dismissed, ordinarily ought to be expected to seek out information on any remedy they may have in a timely fashion. In the circumstances of this case, the Applicant initially chose to pursue a remedy that perhaps was not open to him because he may have not served the minimum employment period. Consequently, he chose to discontinue that unfair dismissal application and file a general protections application.

[52] Ultimately, however, the responsibility to seek out information on any remedy rests with an applicant as does identifying the correct respondent party. If the applicant gets it wrong through her or his ignorance and pursues an incorrect respondent or a remedy that may not be open to her or him, this will not necessarily constitute a credible explanation for part or the entirety of the delay; much turns on the particular circumstances of the matter.[12]

[53] The evidence showed that as recently as June 2021, the Applicant was reminded as to whom he his employer was by a series of contractual documents. The Applicant signed those documents. Further, when disgruntled by the turn of events on the Cleanaway site, it was the Respondent's representative whom he set up a meeting with and wrote to the same. I therefore do not accept that the Applicant suffered confusion as to whom was his employer. However, I do accept that the Applicant considered that he had been unfairly treated by the abrupt removal from the Cleanaway site.

[54] The Applicant also spoke of personal challenges that had entered his life during the period from 29 July 2021, to the making of the first general protections application. I have considered those challenges and have no doubt that resilience was required to contend with them, but ultimately, they occurred at a time when the Applicant was not so incapacitated that he could not address the Respondent about what he considered to be egregious conduct on its behalf and that of the host client.

[55] I do not consider that the Applicant's personal challenges, ignorance of the identity of the respondent employer, or the law, constitute an acceptable reason for the duration of the delay in making the Application or part thereof.

[56] There is no doubt that the Applicant is tremendously aggrieved by the events of 29 July 2021, and it is conceivable that a loss of work may cause terrible upset. This, however, is not uncommon.

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

[58] It is evident that by the letter of 16 August 2021 the Applicant sought to challenge what he considered to be his dismissal by the Respondent and sought reinstatement. I consider this weighs towards a finding of exceptional circumstances.

[59] I cannot identify any particular prejudice that the Respondent would face if an extension of time is granted. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. In the present case, I consider this to be a neutral factor.

[60] The nature of the matter is such that consideration must be given to whether the Application was made within the time period required in s 366(1) and whether an extension of time in which to make the Application should be provided. These are initial matters to be considered before the merits of the Application.

[61] The merits of the Application have not been fully tested. However, there is an observation to be made. The Applicant has alleged that the Respondent has contravened ss 340, 343, 344, 346, 348 and 351 of the Act. There is no submission or assertion proffered to support any of the purported contraventions. The application is markedly deficient in this respect to the point that it is open to conclude that it has not been made in accordance with the Act and should therefore be dismissed under s 587(1). It follows that I do not consider the merits of the case tell for an extension of time. In the circumstances I consider the merits of the case to be a factor that weighs against a finding of exceptional circumstances.

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

[62] The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[63] 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.

[64] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am on balance not persuaded that there are exceptional circumstances as contemplated by s 366(2) of the Act. Furthermore, I do not consider it fair and equitable that time should be extended. There is accordingly no basis to extend the time for lodgement of this application under the Act.
[65] For the reasons above, an Order[13] that the general protections application be dismissed will be made in conjunction with this decision.

[1] Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989 [20].

[3] [2011] FWAFB 975 ('Nulty') [15].

[6] [2018] FWCFB 901 [38] (emphasis in original).

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

[9] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 [16].

[12] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818.

Printed by authority of the Commonwealth Government Printer

Alain Ferrus v Techforce Staffing Services Pty Ltd [2021] FWC 6007 (30 September 2021)

Alain Ferrus v Techforce Staffing Services Pty Ltd [2021] FWC 6007

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Alain Ferrus v Techforce Staffing Services Pty Ltd [2021] FWC 6007 (30 September 2021)