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[127]
[2023] FWC 1760
General information, not legal advice.
Fair Work Commission
2023-07-20
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with contraventions involving dismissal - jurisdiction - whether dismissed - whether application out of time - jurisdictional objection dismissed - extension of time granted
[1] On 22 May 2023 Stephen Harmer (Mr Harmer or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with his alleged dismissal.
[2] Mr Harmer's application is against his former employer The Trustee for the Noonan Family Trust trading as Noonan Builders Pty Ltd (Noonan Builders, the respondent or the employer), which he alleges committed the contraventions.
[3] The respondent opposes the application. It filed a response on 18 June 2023 raising two jurisdictional issues.
[4] The jurisdictional issues are that Mr Harmer was not dismissed and, in the alternative, that if he was dismissed, the application was filed out of time and that time for late lodgement should not be extended.
[5] Mr Harmer submits that his application is not out of time and, in the alternative, if so then time should be extended.
[6] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issues if Mr Harmer's application is to proceed further.
[7] I issued directions on 26 June 2023. I issued further directions for the production of documents by both parties on 14 July 2023.
[8] I heard the jurisdictional matter on 17 July 2023.
[9] Mr Harmer was self-represented. Noonan Builders were represented by its owner and managing director, Mr Jacob Noonan.
[10] I heard evidence from both Mr Harmer and Mr Noonan.
[11] Noonan Builders is a small private family business in regional Victoria (Birchip). It is operated by Mr Noonan who also has responsibility, with other family members, for the operation of a nearby farm.
[12] Noonan Builders employs between three and five persons, depending on work requirements (including one apprentice).
[13] Mr Harmer, who is a carpenter by trade, commenced working in the business in October 2021 as a casual employee.
[14] Mr Harmer worked regularly (commonly at least 35 hours per week).
[15] Mr Harmer was paid an hourly rate. At the end of each week, he would text Mr Noonan the hours he had worked. Mr Noonan would check the hours advised, and then pay Mr Harmer wages for those hours plus superannuation in each fortnightly payroll.
[16] There is a dispute whether, in late February 2022 an agreement was reached that Mr Harmer would be a full time employee. I deal with this below.
[17] On or about 2 March 2023 Mr Harmer and others were erecting framework. It had not been correctly erected and Mr Harmer tried to rectify the error. In doing so, he was injured.
[18] Mr Harmer was off work due to the injury from 3 March 2023.
[19] Mr Harmer made a workers compensation claim.
[20] The employer supported the workers compensation claim. However, Mr Noonan was dissatisfied that Mr Harmer had tried to remediate the work unsupervised, causing injury to himself and potential risk to other employees. Following the incident, Mr Noonan told Mr Harmer that he should not have performed the difficult task unsupervised.
[21] In mid-March 2023, Mr Harmer advised that he was next seeing his doctor on 22 March and might get clearance to return to work earlier than expected.
[23] Mr Harmer replied (by text message) on 24 March and again (by text and then by a return telephone call) on 27 March. He advised that the doctor had indicated that his return to work would be on Friday 31 March.
[24] During the discussion on 27 March 2023 (or one around this time) Mr Noonan told Mr Harmer:
[25] Mr Harmer was medically cleared to work from 31 March 2023. The employer was advised.
[27] Mr Harmer was not rostered to work between 31 March 2023 and 14 April 2023. In this period Mr Noonan was sowing crops on the farm and not on-site though the building business continued to operate. As such, neither Mr Noonan nor his father were able to supervise Mr Harmer in this period.
[28] By the second week of April 2023, Mr Harmer became concerned that he was not being asked to work even though he had ben medically cleared from 31 March and even though the building business was still operating. He twice telephoned Mr Noonan. Both calls went to message bank and were not returned by Mr Noonan, who was sowing crops.
"You obviously have ceased my employment so I need access to my tools and an employment separation certificate, and any annual leave pay to be finalised asap. Also my workcover payments need to be paid."
[31] A week passed. Mr Harmer was not being paid as he was not being rostered to work.
[32] On 22 April 2023, Mr Harmer sent a text message to Mr Noonan:
"I will be over tomorrow afternoon bout 2.30 - 3.00 to get my tools".
[33] Mr Noonan replied the next day (23 April):
"Ok. No worries. They are on the step at the front of the office, at Gus's shed."
[34] Mr Harmer was not rostered between 14 April and 19 May 2023.
[35] No employment separation certificate was prepared by the employer or sent to Mr Harmer.
[37] The insurer closed the claim on 9 May 2023.
[38] Noonan Builders awaited the insurer's calculation of weekly payment entitlements before making up Mr Harmer's final pay. On 19 May 2023 the employer made a final payment to Mr Harmer. The amount paid was based on the insurer's calculation of payments owing as at 30 March 2023. The employer was reimbursed by the insurer for this amount.
[39] The employer made no payments to Mr Harmer for any period after 30 March 2023, as Mr Harmer was not rostered to work after that date.
[41] On 22 May 2023 Mr Harmer filed these proceedings.
[42] Mr Harmer submits that he was dismissed but does not know the date dismissal took effect because he was not told this by the employer. He says that his dismissal was certain in his mind on 14 April 2023 when Mr Noonan did not respond to his text message saying he had been dismissed, and again on 23 April 2023 when he was told by Mr Noonan how he could collect his tools, and again on 19 May 2023 when he received his final pay.
[43] Mr Harmer submits that there was a dismissal because he was not given work. Mr Harmer submits that he was medically fit to be rostered from 31 March and had a reasonable expectation of being rostered because he was regularly rostered before the 2 March injury.
[44] Mr Harmer submits that if he requires an extension of time, this should be granted because:
[45] Noonan Builders submit that Mr Harmer was not dismissed. It submits that he remained on the books as an employee until 14 April 2023 when he, Mr Harmer, asked for an employment separation certificate. He was not given one because he was still employed and capable of being called upon.
[46] Noonan Builders submit that Mr Harmer was not rostered in the two week period from 31 March 2023 to 14 April 2023 because he had been notified the week earlier that he would not be rostered unless he was able to be supervised, and that in that fortnight neither Mr Noonan nor his father were available to supervise him as that they were performing farm duties.
[47] Noonan Builders submit that it made up Mr Harmer's final pay in response to his indication on 14 April 2023 that his employment had ceased. It submits that it paid the final pay on 19 May 2023 and not earlier because it was awaiting the insurer's calculations of sums owing.
[48] Noonan Builders submit that if Mr Harmer was dismissed, his application is out of time and time should not be extended because the circumstances are not exceptional. It submits that Mr Harmer waited five weeks between 14 April and 22 May 2023 to challenge the alleged dismissal.
"365 Application for the FWC to deal with a dismissal dispute
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."
[50] Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact.[7] "Dismissal" for these purposes (and other purposes of the FW Act) is defined in s 386(1), which provides:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."
[51] Termination of the employment relationship needs to have occurred as a matter of fact for there to be a "dismissal". It is the employment relationship and not a particular contract that is the subject of a dismissal.
[52] Relevant to this issue, but not determinative, is making a finding as to whether Mr Harmer was, at the time of alleged dismissal, a full time employee or a casual employee.
[53] There is nothing in writing that establishes a full time contract. The evidence as to whether, as suggested by Mr Harmer, that an oral agreement was made in February 2022 that he become a full time employee and be paid for public holidays and accrue leave entitlements is inconclusive. A mere discussion about that topic does not create a contract. Only if I find that a discussion led to such an agreement can that finding be made.
[54] Conduct over the following year is relevant. Mr Harmer's hourly rate was not altered. This suggests he remained a casual employee. Mr Harmer did not seek and was not paid annual leave in the year that followed. This suggests he remained a casual employee. Mr Harmer continued to advise the hours he worked each week, and those hours varied. This suggests he remained a casual employee. However, Mr Harmer was paid public holidays thereafter even when not rostered those days. This suggests he was no longer a casual employee.
[55] Whilst recognising that these objective facts do not necessarily mean that a full time contract had not been agreed (as it may have been agreed but not been given effect to by the employer), considered overall the evidence is insufficient to make a finding that a full time contract of employment existed.
[56] Whilst I find, on the balance of probabilities that Mr Harmer remained at the time of alleged dismissal a casual employee, this does not preclude a finding that he was dismissed. Whilst a casual employee is a person employed on a series of separate contractual engagements, I have observed that the legal concept of dismissal concerns termination of the employment relationship and not necessarily the ending of a contract. Thus, a casual working on a regular or systematic basis can have, in the absence of evidence to the contrary, a continuing employment relationship with their employer from which they can be dismissed.
[57] I find that Mr Harmer had an employment relationship of that character from which he could be dismissed.
[59] For the following reasons, I conclude he was.
[60] Noonan Builders was aware that Mr Harmer was medically fit to resume duties from 31 March 2023. It chose not to roster him. Given that Mr Harmer had, prior to the injury, worked regularly, the failure to roster in circumstances where the business continued to operate was a decision to not offer work. That was the employer's decision. The failure to offer work ended the employment relationship. It was, within the meaning of s 386(1)(a) conduct on the employers initiative.
[61] I accept and take into account that Mr Noonan did not consciously decide to dismiss Mr Harmer. He left him on the books but only to be rostered if and when it suited. As Mr Noonan had told Mr Harmer, he (the employer) "needed time to think about things moving forward". This was a clear reference to the fact that Mr Harmer may not be employed on the same regularity and unsupervised basis. It is well established that whether a person has been dismissed is not decided by reference to the subjective intention or belief of either the employee or the employer. It is decided objectively by reference to all relevant circumstances. Conduct is what is decisive, not intention. Whether intended to or not, the failure to roster Mr Harmer at any stage after 31 March 2023 had the effect of terminating the employment relationship. Thus, it was a dismissal.
[62] I do not accept the employer's submission that Mr Harmer ended the relationship on his own initiative on 14 April 2023. Mr Harmer messaged the employer on that day because he had not been rostered, because he believed that he had lost his job and income because he had not been rostered, and because he wanted to obtain an employment separation certificate in order to claim unemployment benefits (Newstart). All of this was rational conduct by Mr Harmer and neither by word nor conduct did he end his employment. An employee asking for an Employment Separation Certificate in order to access unemployment benefits in circumstances where that employee has reasonable grounds to believe that their employment has been ended by their employer's conduct is not a resignation or termination on the employee's initiative.
[63] The terms of Mr Harmer's text message leave no room to objectively conclude otherwise. Addressing Mr Noonan, Mr Harmer stated "you obviously have ended my employment...". If Mr Noonan believed on 14 April 2023 that Mr Harmer was wrong in stating that his employment had been ended by the employer he could have said so. He didn't. He didn't because he was content to allow the relationship to finish that way. His subsequent conduct in preparing a final termination payment underscores that conclusion. His prior conduct, in not responding to Mr Harmer's two calls in the week prior to 14 April 2023 also underscores the employer's willingness to let the relationship wither on the vine.
[64] Having found that Mr Harmer was dismissed, I now deal with when the dismissal took effect.
[66] The conduct of the employer in not rostering Mr Harmer at any stage in the days and weeks that followed 31 March 2023 was not accompanied by any written advice about his status. None of the employer's conduct was plain and unambiguous. It chose to be silent and leave Mr Harmer to work out for himself whether he had a job, and to await some unscheduled call to be rostered, which never came.
[67] I take into account that Mr Noonan was busy sowing crops during April 2023 and that only in the final weeks of April did he progressively have more time for the family construction business. Whilst this explains in part his lack of responsiveness to Mr Harmer, it only somewhat does so. Mr Noonan had opportunity to state on or after 14 April 2023, even by return text or a single telephone call, that his employment had not ended. He did not do so. In any event, that a business owner conducts multiple business does not obviate the need to be clear on the employment status of an employee in one of those business who believes they have been sacked.
[68] Whilst it is tolerably arguable that notification by the employer did not occur with any degree of clarity until the final termination pay and payslip was received on 19 and 21 May 2023 (in which case this application is within time), the better conclusion is that the employer's indication on 23 April 2023 to Mr Harmer that he could collect his tools from a stated location, after a week of no reply to his earlier text message of 14 April and then a further text by Mr Harmer about collecting the tools, was in objective terms confirmation that the employment relationship was finished.
[69] That being so, it can reasonably be said that Mr Harmer had a proper basis to consider himself no longer employed from at least the time he collected his tools on 23 April 2023, and thus had sufficient grounds to make a claim asserting a breach of general protections.
[70] I find that the employment relationship ended at the initiative of the employer on 23 April 2023 after Mr Harmer was told where he could collect his tools from and after the employer had for a week chosen not to reply to Mr Harmer's 14 April 2023 text message about his employment status which had in turn followed a fortnight of not being rostered once he had recovered from the workplace injury.
[71] Having found that Mr Harmer's dismissal took effect on 23 April 2023, the application is eight days out of time.
[72] I now consider whether an extension of time should be granted for the late lodgement.
[73] Section 366 provides a time limit for the filing of applications under s 365:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(e) fairness as between the person and other persons in a like position."
[74] Being eight days out of time, Mr Harmer's application can only proceed if he establishes "exceptional circumstances" within the meaning of s 366(2).
[75] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[10]
[77] I apply s 366(2) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
"[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."[13]
[78] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[14]
[79] I now consider each of the factors in s 366(2).
[80] The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[15] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[16]
[81] However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[17] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[18]
[82] In this matter, the delay period is the eight days between 15 May 2023 and 22 May 2023 inclusive.
[83] The reasons advanced by Mr Harmer are that:
[84] The first two of these reasons are compelling. The evidence clearly establishes an ambiguous stance by the employer which left Mr Harmer second-guessing his employment status. It also clearly establishes a failure to respond to his proposition that the employer had sacked him. Mr Harmer was not advised of dismissal in a clear and unambiguous manner. He was only aware of dismissal by assessing the conduct (omission and commission) of the employer and drawing his own conclusions.
[85] That Mr Harmer was not clearly notified by the employer and left to second guess its intention or decision weighs strongly in favour of a finding of exceptional circumstances.
[86] The third of these reasons is factually correct. Only via his final pay on 19 May and payslip on 21 May was Mr Harmer aware of what his termination entitlements were. Whilst Noonan Builders had reasonable grounds for not making up the final pay until May 2023 given that both parties were awaiting payment detail calculations from the insurer, Mr Harmer was completely in the dark as to whether he had been or would be provided any pay for work from 31 March 2023 or if he was being paid any notice in lieu. Whilst this reason in part explains the delay, it only somewhat does so as it is not essential that a general protections application be accompanied by final payment details.
[87] Considered overall, the explanations for the delay weigh strongly in favour of a finding of exceptional circumstances.
[88] Mr Harmer took action on 14 April 2023 to seek a response from his employer about his employment status. He did not however thereafter indicate to it that he considered its conduct unlawful.
[90] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[19]
[91] If time is extended, a claim would have to be further responded to by the employer, involving time and cost. However, that prejudice, whilst real, is not unique.
[92] This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[20]
[94] A hearing would concern whether Noonan Builders unlawfully breached Mr Harmer's workplace rights. This would likely concern if lawful or reasonable grounds existed for not rostering Mr Harmer unsupervised from 31 March 2023 and allowing the employment relationship to end at a time and in the manner it did.
[95] Further evidence on these matters would be required to make relevant findings. Noting the reverse onus of proof in the FW Act, it is premature to do so.
Fairness between persons in similar position (s 366(2)(e))
[97] In this matter, this is not a relevant factor.
[98] The period of delay being eight days, in the context of a statutory twenty-one day time frame, is not insignificant.
[99] The explanations for the delay weigh materially in favour of finding exceptional circumstances. All other considerations are neutral.
[101] As I have found that Mr Harmer was dismissed within the meaning of the FW Act and as I have extended time for the late lodgement of the application, application C2023/2769 is within jurisdiction. The jurisdictional objections are dismissed.
[102] For the sake of completeness, had I found the dismissal to have taken effect nine days earlier (on 14 April 2023 when Mr Harmer messaged Mr Noonan and received no reply) I would have reached the same conclusion.
[103] The Commission will exercise the powers conferred by s 368. A conference of the parties will be conducted for the purposes of conciliating the dispute.
Mr J Noonan of The Trustee for the Noonan Family Trust trading as Noonan Builders Pty Ltd
[7] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54]
[8] Mihajlovic v Lifeline Macarthur [2013] FWC 9804; Goodenough v CXN Transport Pty Ltd [2023] FWC 715, [32] and [34]
[9]Ayub v NSW Trains [2016] FWBFC 5500, [50]
[10] Smith v Canning Division of General Practice [2009] AIRC 959
[11] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]
[12] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[13] [2011] FWAFB 975 "Nulty" at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]
[14] John Mamur v Coles Group Supply Chain Pty Ltd [2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council [2021] FWCFB 167 at [6]
[15] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36]
[16] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [35]- [45]
[17] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288
[18] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[19] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
Printed by authority of the Commonwealth Government Printer
Mr Stephen Gregory Harmer
The Trustee For The Noonan Family Trust [2023] FWC 1760
(1995) 67 IR 298