Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time granted.

• [1] On 21 June 2022, Mr Kevin Black lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against GHD Pty Ltd (GHD). Mr Black commenced employment on 9 November 2020, and he was given notice on 25 November 2021 that his employment was to conclude effective from 26 November 2021.

• [2] Mr Black was employed as a Contract Surveillance Officer by GHD subject to a fixed term contract and on secondment to Main Roads WA, GHD's client. The fixed term contract was extended on its conclusion on 30 June 2021 on request of the client to cover a longer period on the project. On 17 November 2021, Mr Black was informed that Main Roads WA gave notice to GHD of its decision to terminate the contract for services.

• [3] Mr Black contends that he was given reasons for his dismissal as failure to attend site pre-start meetings or undertake a breathalyzer test which were considered safety breaches. He further states that the initial reasons for his dismissal were retracted by GHD. The letter of termination refers to Main Roads WA advising GHD of its decision to conclude the secondment and consequently he was not required on the project.

• [4] Mr Black contends that the reason for his dismissal is not correct. Rather, he states the that the actual reason for the termination was because he raised construction safety breaches by contractors on two projects, which his role required him to do, but the client did not act on his reports.

• [5] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 168 days after the 21-day statutory time limit.

• [6] Mr Black submits that he filed an unfair dismissal application within the 21-day statutory time frame. The Commission records show that Mr Black did lodge an unfair dismissal application on 17 December 2021; the matter was also subject to a conciliation conference on 3 March 2022. On 15 March 2022, Mr Black filed a notice of discontinuance.

• [7] Mr Black submits that his general protections application was filed on time as he understood from the discussion with the conciliator that his application should have been filed as a general protections rather than unfair dismissal application. Further, he submits the delay in this application is related to the process in the unfair dismissal application, namely that while he filed on 17 December 2021, the conciliation conference was first scheduled for 22 February 2022, and was adjourned at the Respondent's request until 3 March 2022. He submits that it was only then that he was informed that he filed the wrong form. He submits that his application is serious and not frivolous and the detail in the Form F8 (general protections application reflects what he placed in the Form F2 (unfair dismissal application) but with further elaborated detail.

• [8] Mr Black submits that his dismissal is a contravention of his workplace rights in terms of:

• S.340 Protection of Workplace Rights

• S.343 Coercion

• S.344 Undue influence or pressure

• [9] GHD contest the extension of time application and refer to the initial unfair dismissal application and the notice of discontinuance which identified that Mr Black wholly discontinued his application. It further states that among the options, Mr Black did not tick the box marked "wholly discontinues this matter to pursue an alternate application."[1]

• [10] GHD further contend that Mr Black did not during the conciliation conference indicate that he filed the wrong application, and this application is three months after he filed the notice of discontinuance and six months from the date of dismissal.

• [11] GHD dispute that it contravened any general protections and state that Mr Black's employment was dismissed pursuant to the contractual terms in his contract of employment. In this case, the client, Main Roads WA informed GHD that it no longer required the Applicant on its project. GHD refer to the Applicant's offer of employment dated 29 October 2020 and his secondment memorandum also dated the same date. The original fixed term contract expired on 30 June 2022 and later extended to 23 December 2022. It submits that on 17 November 2021 it notified Mr Black that his secondment was terminated and that despite its efforts to find alternative work, nothing was identified and employment was terminated on 25 November 2021. Mr Black was paid five weeks' notice in lieu.

• [12] GHD also in response to Mr Black's submissions states that it was alleged that he failed to comply with pre-start meeting attendances and the breathalyzer, it states that "Main Roads WA did communicate their concerns to GHD relating to the Applicant failing to attend site pre-start meetings and not undertaking required drug and alcohol screening tests and GHD understands that this was a factor in their decision to terminate the secondment arrangement. GHD explored thee concerns with the Applicant and Main Roads WA and concluded that the required safety practices had not been undertaken by the Applicant to the expected standard."[2]

• [13] General protections applications involving dismissal must be made within 21 days.

• [14] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

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

• [15] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[3] where it was held that:

"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 regular occurrence, even though it can be a on 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."[4]

• [16] I now turn to the Applicant's arguments for an extension of time in relation to each of the considerations of s.366(2).

• [17] The general protections involving dismissal application was lodged with the Commission on 3 June 2022, 168 days late. Mr Black was aware that his dismissal took effect from 26 November 2021, and he was aware of the 21-day timeframe for applications to be lodged with the Commission.

• [18] Mr Black submits that his application was filed on time because he filed the unfair dismissal application and there was a delay in scheduling the conciliation conference which was when he became aware that he filed the wrong form. He submits that he then researched the difference between an unfair dismissal and general protections application and in that process understood that he could not have two live applications, so he withdrew the unfair dismissal application on 15 March 2022 by email (12 days after conciliation).

• [19] Mr Black provides the following explanations for the delay in filing the general protections application:

• He awaited confirmation that the unfair dismissal application was cancelled;

• • He became quite unwell in the week commencing 15 March 2022 and this illness "got considerably worse over the next few weeks"[5]; and

• • His illness presented COVID-19 like symptoms, and he was unable to think very well or operate a laptop. He cannot recall the date he tested positive which was either in March or April 2022. His illness persisted for some time, its symptoms changed, and he was so unwell he could not complete his application which he started in March 2022.[6]

• [20] Mr Black tendered in evidence a photograph of a positive COVID-19 rapid antigen test dated 13 May 2022. No other evidence was tendered in support of Mr Black's illness or his incapacity to file an application with the Commission.

• [21] GHD refer to the long delay in filing the general protections application, which is true. However, I take into consideration that the unfair dismissal application was filed on 17 December 2021. GHD did not file a response until 24 February 2022. The initial conference scheduled for 22 February was postponed until 3 March on the Respondent's request. Mr Black's Form F8 general protections application is dated 30 May 2022, but was formally accepted by the Commission with payment on 3 June 2022.

• [22] There must be a credible reason for the delay.[7] Mr Black refers to the delay caused by the Respondent in responding to his applications and the adjournment to the conciliation conference. Even if the period from dismissal until the conciliation conference were accepted as exceptional circumstances for the delay, there remains a delay of 92 days, not an insignificant period. From the conciliation conference it took Mr Black to file the notice of discontinuance a period of 12 days. Mr Black largely attributes his delay to symptoms similar to or the actual COVID-19 infection. An infection that he says rendered him incapable of filing his application from about 15 March 2022, which is a period of 80 days is significant to justify without valid corroborating evidence. One picture of a positive RAT on 13 May 2022 is not sufficient.

• [23] On any objective basis, Mr Black's explanation cannot be accepted as being exceptional, unusual, out of the ordinary, uncommon or special. However, had Mr Black not withdrawn his unfair dismissal application he would have had recourse to a process where his dismissal would be assessed on the basis of it being harsh, unjust or unfair. While not a general protections application, he nevertheless would have had access to a process for remedy. I also accept that he did not consider that his application should have been more appropriate as a general protections application had he not had the discussion with the conciliator. While the conciliator did not advise him to withdraw and file a new claim, the discussion was enough for him to question the correctness of his application. On this basis, I do consider the period from the conciliation conference until the lodgement date of this application, as the period of delay relevant to this consideration. In all fairness, the delay in listing the unfair dismissal conciliation conference was not attributable to any action by Mr Black. Despite accepting the period as unusual or exceptional circumstances in this matter, the period from the conciliation conference is absent of any valid or exceptional reason. Consequently, for the period in question, I am not satisfied that Mr Black has demonstrated credible reasons regarding this consideration that weigh in his favour.

• [24] Mr Black contends that prior to and at his dismissal, he responded to and refuted allegations that he breached safety requirements, which he described as personal attacks on his integrity. These allegations were withdrawn but continued to be referred to in discussions with GHD. He further submits that he challenged the reason that the client no longer had any work for him as one of the projects was only half finished and his contract was extended to 23 December 2022.[8] Mr Black also filed an unfair dismissal application where his dismissal was challenged by him during the conciliation conference on 3 March 2022.

• [25] GHD in their submissions refer to Mr Black's notice of discontinuance which provides no indication of any further application and say that he did not indicate any intent to file a different application at the conference. For these reasons it suggests that Mr Black cannot satisfy the Commission that this consideration falls in his favour.

• [26] Having considered the submissions and evidence I am satisfied that Mr Black took active steps to challenge his dismissal. Mr Black challenged GHD on the genuineness of the reason for his termination of employment and within a reasonable period made an unfair dismissal application. While a conciliation conference was held and the matter remained unresolved, there was no indication at that stage that Mr Black would not continue to challenge his dismissal. Mr Black made serious allegations regarding breaches of safety for which he reported to his line managers his concern about pressure to be silent, suggestions about the conclusion of his contract and advice to him that he should "work with the contractor", all of which he reported to GHD. GHD did not directly respond to any of these allegations with much detail other than deny there was any contravention of general protections. It is reasonable to conclude that Mr Black did not intended to pursue his dispute following the conciliation conference. I am satisfied this consideration does weigh in his favour for an extension.

• [27] Mr Black contends that there is no prejudice in the delay and that GHD experienced no disadvantage. He further considered whether GHD would be disadvantaged in terms of evidence and he concluded that the evidence is well documented thereby removing any suggestion of disadvantage.

• [28] GHD contend that the lateness of the application does cause disadvantage or unfairness on the basis that when Mr Black withdrew his unfair dismissal application, he did not withdraw giving notice that he was to pursue a different application. While Mr Black did not tick the correct box on the notice of discontinuance the purpose of the options on the form is for the Commission to keep data on applications. The notice is an optional document and is not intended to be the only mechanism for an applicant to discontinue. As the form states, an applicant may discontinue by lodging the form, phoning in, sending a fax, email, note by post or advising the Commission in the course of a conference or hearing. Too much reliance by GHD on not ticking the correct box, in my view is not reasonable to conclude that the Respondent experienced disadvantage or prejudice. During the hearing Mr Black indicated that it was during his discussion with the conciliator that he became aware that his application was more suited to a general protections application. Again, I give little weight to the reason by the Respondent that no notice was given for a subsequent matter to argue disadvantage or prejudice, it is not common for conciliators to share the full breadth of private discussions with an Applicant.

• [29] GHD does validly state that matters should be dealt with in a timely way, suggesting that timeframes in the Act are for the purpose of giving parties a level of certainty. Mr Black did lodge his first application, the unfair dismissal on time, but the delay was beyond his control. Not all of the delay is attributable to GHD seeking an extension to file their response materials. GHD further state that Mr Black was dissatisfied with the outcome of the conference, hence this application is somewhat a second bite at the cherry. I do not consider that this is an accurate reflection of why Mr Black withdrew his application. In fact, had he kept the unfair dismissal application, if he was dissatisfied with the conference outcome, he had access to a remedy through arbitration. This matter in my view on balance of the materials before me is not a second bite at the cherry.

• [30] Nevertheless, while I do not consider that the Respondent has experienced disadvantage or prejudice. The authorities are clear that the mere absence of prejudice for the Respondent is an insufficient basis to grant an extension. This consideration therefore is neutral.

• [31] Mr Black contends that his role as surveillance officer required him to report on safety compliance and on two building projects he had identified safety breaches by contractors. He presented reports on the breaches and consequently he states that he was taken off a project to perform menial and unnecessary tasks, that he was denied the opportunity to view the review report (in response to his report on breaches of safety) which he says had a direct impact on his position and he was pressured by his line managers from exercising his workplace rights by being silent on the breaches. He states that his dismissal occurred very soon after and constituted adverse action because the evidence shows that one of the projects was not complete and was scheduled over a four-year period.[9] The evidence is that the AMSS contract with Main Roads WA was to conclude on 7 June 2023.

• [32] Mr Black submits there were discussions at meetings with line managers and his two GHD managers where he confirmed the requirements of his role, that he should raise safety breaches but had to "get along with the contractor," allegations made against him (that he failed to attend pre-start meetings and refused breathalyzer checks) were never supported with any evidence and that he had the evidence to prove his reported safety breaches in documentation and photographs that he stored on the secure document management system. He further stated that he was confident that witness evidence would weigh in his favour should he be given the opportunity to challenge his dismissal.

• [33] Mr Black states that he had a right to raise safety issues, that he had a right to enter a safe workplace and not be bullied or coerced into doing something wrong. He states that he performed his job in compliance with health and safety regulations, engineering design standards, Main Roads WA specifications and requirements for completion of paperwork. The pressure to be quiet on safety concerns or falsify records, to receive veiled threats in the form of questions when his contract concludes and ultimately his dismissal, is evidence of adverse action contrary to his general protections pursuant to sections 340, 343, and 344 of the Act.[10]

• [34] GHD submit that the dismissal simply relates to the client's decision that it no longer required Mr Black to deliver services on its projects. It says that the contract of employment provides for termination of employment should the "fixed term" expire, or the client no longer requires the secondment of Mr Black. The parties tendered in evidence the contract of employment[11] and I observe that while the contract does make reference to a fixed term, with the date of expiry being 30 June 2022. Relevantly the clause states:

"This is a fixed term offer of employment, concluding June 30, 2022 or at the completion of your role under the Asset Management Support Services contract with Main Roads Western Australia, or until GHD's client (Main Roads Western Australia) advises that you are no longer required on the project, whichever occurs first."

• [35] There is an inconsistency in what is ordinarily a fixed term contract and in this letter of offer; that is a provision that the contract may come to an end because the client no longer requires the employee on the project, particularly if the second part brings the contract to an end before the end of the fixed term. I also observe that the contract permits GHD to vary Mr Black's duties, office location, reporting line or level from time to time.

• [36] I further note that the contract provides for a probationary period, in Mr Black's case a period of 6 months and notice to terminate with 4 weeks' notice and one additional week to apply to GHD where it brings the employment to an end and the employee is more than 45 years old.

• [37] Tendered was a memorandum from GHD to Mr Black confirming his secondment to Main Roads WA dated 29 October 2020. This memorandum is in addition to the contract of employment and refers to the arrangement as a secondment. The description of the arrangement differs from the letter of offer:

"Your secondment commences on 9 November 2020 and will conclude on 30 June 2022. Actual secondment duration may vary in response to prevailing client requirements. All project conditions cease if you leave the project before the secondment end date, or at the conclusion of your secondment. The AMSS contract with Main Roads is currently set to conclude on 7 June 2023."

• [38] While the secondment memorandum confirms the period of secondment and expected duration of the project (until 7 June 2023), the same memorandum further states that "on successful completion of your secondment with Main Roads, GHD will explore other opportunities for you within GHD."

• [39] Also tendered in evidence is the memorandum dated 4 May 2021[12] which confirms an extension to the fixed term contract as Surveillance Officer under the Main Roads Asset Management Support Services Contract with Main Roads Western Australia. This variation confirms the extension until 23 December 2022; relevantly, the paragraph reads:

"This extension is effective immediately through to 23 December 2022, or the completion of your role under the Asset Management Support services contract with Main Roads Western Australia, or until GHD's client (Main Roads Western Australia) advises that you are no longer required on the project, whichever occurs first. All other terms and conditions as outlined in your Offer of Employment, Terms of Employment and the Main Roads Secondment Memorandum dated 29 October 2020 remaining unchanged."

• [40] Interestingly, this extension was made before the expiry of the first fixed term contract. Mr Black's employment ultimately was dismissed before the expiry of either fixed term contract (first and extension), and coincidently after he raised safety breaches.

• [41] The memorandum to Mr Black dated 25 November 2021 advising him of his termination of employment states that the termination of employment is his "fixed term employment." This is indicative of further variation in the language used to describe the employment contract with GHD. Throughout the hearing GHD referred to Mr Black's employment as a fixed term contract, so I deduce that the intention was that the contract was fixed term, without the benefits of a fixed term arrangement since Mr Black was only paid 5 weeks' notice.

• [42] Having considered the submissions and evidence tendered, I conclude that Mr Black may have an arguable case on merit. While I have not tested the merit argument nor is it appropriate to do so in an extension of time Mr Black's allegations regarding contravention of his workplace rights was not heavily contested by GHD. Although it did deny the allegations and contends that the dismissal occurred simply because the client no longer required Mr Black. This in itself appears inconsistent with the evidence of the terms in the fixed term contract, the secondment terms and the expected duration of the project to be managed by GHD. Much was also said about the allegations that Mr Black did not comply with safety requirements (pre-start meetings and breathalyzer tests) and while GHD states that it was not the reason for the dismissal, it does in it its outline of argument concede that the client did mention this and on their investigation found that the evidence went against Mr Black. On the other hand, Mr Black contested the allegations, and his request for evidence against him and his evidence disputing the allegations appears not to have been taken into account. Therefore, on balance I have concluded that Mr Black may have an arguable case and this consideration weighs in his favour for an extension of time.

Fairness between the person and other persons in a like position

• [43] Mr Black did not address this consideration directly, he did however reconfirm the unfairness and legal concerns that his employer and their client avoided serious safety breaches contrary to their own legal obligations.

• [44] The Respondent did not address this consideration.

• [45] Consequently, I find this consideration neutral.

• [46] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

• [47] On the matter of merit Mr Black raises serious allegations of contravention of his workplace rights which on the material before me, consider there may be an arguable case, further Mr Black did take active steps to challenge his dismissal, but mismanagement of his application led to delay including his failure to present credible evidence to justify the reasons for delay. On prejudice and fairness, I considered both neutral. On balance I have determined to grant an extension of time. I am swayed by the evidence that it was only after the discussion with the conciliator that Mr Black questioned whether his unfair dismissal should have been a general protections application. To deny Mr Back an extension having considered all of the factors in s.366(2) would not only deny him access to justice, but would be an injustice taking into account that for no good reason a discussion about general protections well after his dismissal led to withdrawal of his application.

• [48] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter will be listed for further conciliation.

[1] Respondent's form F8A Response to general protections application at Q2.4.

[3] [2011] FWAFB 975.

[5] Applicant's form F8 at Q1.4 [18] and Applicant's outline of argument at 1d [18].

[6] Ibid at [19] - [34] and Ibid at 1d [19] - [39].

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[8] Applicant's outline of argument at 1e [39] - [50].

[10] Applicant's outline of argument at 1h at [1] - [17].

[11] Offer of employment dated 29 October 2020.

[12] Memorandum from GHD to Mr Black dated 4 May 2021 confirming an extension to the original fixed term contract.

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