Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

The Trustee for TRT Redmarsh Trust, Ms Madeleine Roberts-Thomson

Application to deal with contraventions involving dismissal

• [1] The matter before me involves jurisdictional objections to the continuation of a general protections application to the Fair Work Commission made by Michael Green against Madeleine Roberts-Thomson and the Trustee for TRT Redmarsh Trust. There are two objections made to continuation of the application: first that Mr Green was not an employee and thereby not dismissed and second, that the application is made outside of the statutory time limit for the making of such applications.

• [2] The matter was the subject of a hearing before me on Wednesday, 18 September 2024, at which Mr Green appeared and represented himself. Mr William Marshall, of Gaden's Lawyers sought and was granted permission to represent the Respondents in the matter. Material before the Commission relevant to these matters included an affidavit prepared by Mr Green and a witness statement of Mr James Roberts-Thomson. I have relied upon the relevant parts of this material for the determination now made by me.

• [3] The argument that Mr Green was not an employee and thereby was not dismissed, turns on the Respondent's view that while a contract of employment had been offered to Mr Green, his employment as such had not commenced at the time Mr Green was notified by the Respondents that his services were not required.

• [4] With respect to the matter of an extension of time, Mr Green puts forward that the date of his dismissal was 26 June 2024. His general protections application to the Commission was made on 8 August 2024. Section 366(1)(a) of the FW Act requires that a general protections application involving a dismissal be made to the Commission within 21 days after the dismissal took effect. Given the aforementioned dates, it may be seen that Mr Green's application was made 22 days after the expiry of the statutory time limit for the making of an application, which was 17 July 2024. Unless the Commission is satisfied that there are exceptional circumstances that warrant the granting of an extension of time being provided to Mr Green, his application will not be able to proceed.

• [5] The relevant facts of the matter are somewhat straightforward.

• [6] The Respondent is in the business of managing a farm in Tasmania near Smithton. The Applicant says that, in a conversation on or around 20 June 2024 with Timothy and James Roberts-Thomson, two directors of the Respondent, and a third person who was a farm manager, Mr Green was asked whether he may be able to manage the farm for the forthcoming milking season, between 1 July 2024 and 30 June 2025. Mr James Roberts-Thomson says employment was offered to Mr Green on 21 June 2024. Further conversations ensued between Mr Green and representatives of the Respondent, including what appear to be negotiations about whether Mr Green could bring his own livestock to the property. Later, on or around 23 June 2024, James Roberts-Thomson provided Mr Green with a proposed employment contract. There is no particular dispute between the parties as to whether the contract itself was an employment contract. The contract specified that Mr Green's employment with the Respondent would commence on 1 July 2024, or as agreed (with there being no evidence that another date was agreed.

• [7] Later, for reasons which are not especially relevant to this decision, another representative of the Respondent, Madeleine Roberts-Thomson, emailed Mr Green retracting the Respondent's offer of employment. Ms Roberts-Thomson confirmed the withdrawal of the offer of employment on 26 June 2024. The withdrawal of the offer of employment led to hardship for Mr Green, not only because of the loss of future earnings, but also because part of the arrangement between the parties had been for him to use a residence on the farm.

• [8] A consequence of the withdrawal of the employment offer was that a lease in respect of the agistment of Mr Green's livestock at the Second Respondent's farm was also withdrawn. Mr Green says that, between 26 and 30 June 2024, he made numerous phone calls to Ms Madeline Roberts Thomson and Mr James Roberts Thomson trying to change their minds, both in respect of the withdrawal of the employment contract as well as the livestock lease. Further representations were made to the Respondents by Mr Green's solicitor, however no change was extracted. Mr Green was unable to source alternative arrangements for the agistment of his livestock in mid-to-late July. A dispute then arose between the parties in mid-July about the presence of Mr Green's livestock at the Respondent's farm, which continued beyond the date on which Mr Green filed his general protections application, 8 August 2024. Mr Green believes his livestock were then slaughtered at a Smithton abattoir on 11 September 2024. The timing of these matters was well beyond the final day for an in-time lodgement, which expired on Wednesday, 17 July 2024.

• [9] At the time the employment offer was withdrawn, Mr Green had also already started moving his belongings into a farm house, which was to be made available to him to live in "during your employment". I accept the Respondents' case that the house would only have become Mr Green's to use when the employment arrangement was set to commence, and that moving belongings to the house before 1 July 2024 did not signal that employment commenced before that date. It was not put by Mr Green that he had begun living in the house.

• [10] It is now well accepted that the protections available to applicants under the FW Act for reason of termination of employment, whether they be applications such as this, being a general protections application, or an unfair dismissal application, require the Commission to distinguish between termination of the employment relationship and termination of employment. For example, in the matter of Kelly v Melba Support Services Australia ( [2021] FWCFB 4845) the Full Bench held,

"[21] Although there can be no employment relationship without a contract of employment, a contract of employment may come into existence before an employment relationship is formed. For example, an employer and an employee may enter into a binding contract for the employee to commence employment with the employer in, say, six months' time. If the offer of employment is withdrawn after the contract has been made but before the employment commences, the employer may be liable for breach of contract but the employment relationship will not come into existence." (footnotes omitted)

• [11] The distinction is an important one, as it recognises that a wider relationship between two parties may well exist before employment has actually commenced. The remedies available to people who make a general protections application involving dismissal or similarly an unfair dismissal application, are available only if the Commission is able to find that the person has been "dismissed" as that term is defined within s.386. Relevantly, that section requires the Commission to make a positive finding that a person has been "dismissed" because their "employment with his or her employer has been terminated on the employer's initiative".

• [12] While the term "employment" is not defined in the FW Act, s.335 defines the terms "employee" and "employer" as having their ordinary meanings. That definition is relevant to determination of this matter, as employment, by extension, must be regarded as being given its ordinary meaning as well. That is, the Commission must be satisfied that there is in place actual employment, in the sense that work is being performed by a person for another entity in return for payment. There is no evidence before me as to either work being performed at the time of the Respondent's withdrawal of the offer of employment, or any payment being made at that time in return for Mr Green's labour.

• [13] Difficult though the situation is for Mr Green, a finding is not available to me that he was employed at the time of the withdrawal of the offer of employment. It follows that a finding is not available to me under s.386 that Mr Green was dismissed on 24 June 2024.

• [14] Consequently, I must find that Mr Green's general protections application is without jurisdiction, as he has not been dismissed, which is the prerequisite in s.365.

• [15] Having made this finding, it is unnecessary for me to consider in detail the respondent's extension of time objection. However, it is appropriate for Mr Green's purposes for me to deal with the matter briefly. In short, I am not satisfied that there are exceptional circumstances that would cause me to allow a further period to Mr Green for the making of his general protections application.

• [16] In relation to the reason for the filing delay, Mr Green explained that he only became aware of a general protections application as an avenue of remedy a few days before actually making the application. He does not believe that he knew about the 21 day statutory filing limit until close to the time that he made the application. The explanation must therefore be regarded as ignorance of the avenue of remedy and the associated time limit. The commission has repeatedly held that ignorance of such matters is not an acceptable explanation for late filing. Such explanation as Mr Green has given about the delay in making his application would not lean towards a finding of exceptional circumstances.

• [17] There is ample material before the Commission that Mr Green actively disputed the circumstances in which he found himself from late June. Those circumstances included not only the withdrawal of an offer of employment, but also a withdrawal of commercial livestock agistment and other arrangements. The dispute between the parties extended well beyond the date of filing for Mr Green's general protections application. Mr Green apparently used lawyers at least in some stages of the dispute as it related to his livestock. It may be drawn from his commercial dispute that Mr Green was or should have also been in a position to actively dispute the withdrawal of the employment offer. Again, because of those circumstances, consideration of this criterion would lean against a finding of exceptional circumstances.

• [18] The Respondents do not claim any particular prejudice to them if an extension of time were to be granted to Mr Green. However, at best, consideration of this criterion would suggest that it is merely a neutral factor in my overall determination.

• [19] In relation to the merits of the application, there is some suggestion on the part of the Applicant that the overall arrangement was a sham in the context of s.358. That section provides that an individual may not be dismissed from employment in order to engage the individual as an independent contractor to perform the same or substantially the same work under a contract for services. It is unclear as to why this might be put forward by Mr Green as part of his merits argument. The Respondents case in respect of merits is that if the matter were to proceed, it would argue that information found out about Mr Green after the time that an employment offer was made to him rendered him unsuitable to be an employee, or for that matter to be involved in a commercial livestock arrangement. While those contentions are put forward on both sides, it is difficult at this stage to consider that either side's merits arguments are in such a category as to be an exceptional circumstance for the purposes of consideration of an extension of time under s.366(2). Consideration of the merits criterion is therefore a neutral factor.

• [20] Finally, there is no material before the Commission that would suggest that matters of fairness arise between Mr Green and other people in a like position that would lead to an extension of time. This too is a neutral factor in my consideration.

• [21] On the basis of these considerations, pertinent to s.366(2), my finding is that there are not exceptional circumstances which would warrant an extension of time for the making of Mr Green's general protections application.

• [22] Having found that Mr Green was not dismissed and that, even if he were, an extension of time for his filing was not warranted, I now dismiss Mr Green's general protections application.

Printed by authority of the Commonwealth Government Printer