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[2021] FWC 2163
General information, not legal advice.
Fair Work Commission
2021-04-20
Original judgment source is linked above.
s.365 - General protections
Staffing and Office Solutions Pty Ltd T/A SOS Recruitment; The Commonwealth of Australia (as represented by the Department of Veterans' Affairs); Stephen Maddocks; Susan Amzi; Carol Lehmensich; Dr Paul Nicolarakis
Application to deal with contraventions involving dismissal.
[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Cth) (Act).
[2] I have determined that Mr Paul Dirkis (Applicant) did not file within the statutory timeframe and should not be allowed a further period within which to lodge his application. The reasons for that decision follow.
Was the application filed outside the statutory timeframe?
[3] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).
[4] It was not contentious that the Applicant's employment with SOS Recruitment (First Respondent), to perform services on hire to the Department of Veterans' Affairs (the Second Respondent), came to an end effective 26 February 2020.[1] The Applicant did not lodge this application until 29 January 2021. Accordingly, the period of 21 days ended at midnight on 18 March 2020 and the application was lodged 317 days out of time.
[5] The Applicant asks that the Commission allow a further period for the application to be made. The Respondents strongly oppose.
[6] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are "exceptional circumstances". The matters of which I must be satisfied are set out in s.366(2) of the Act.
[7] The exceptional circumstances test establishes a high hurdle for an applicant.[2] In this context, 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.[3] 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.[4]
[8] My consideration of the matters set out at s.366(2) follows.
Reason for the delay - s.366(2)(a)
[9] 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" or "reasonable" or "credible" explanation.[5] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment, whereas a credible explanation for the entirety of the delay will usually weigh in an applicant's favour.[6] Ultimately, it is a question of degree and insight.[7]
[10] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay.[8]
[11] The reason for the delay in this case was because the Applicant initially pursued an unfair dismissal application, which was ultimately determined as lacking the necessary jurisdiction, before deciding to file this claim. Relevantly:
On 12 March 2020, the Applicant filed an unfair dismissal claim.
On 31 March 2020, the First Respondent filed its response to the unfair dismissal claim which included that it objected to the jurisdiction of the Commission because the Applicant earned more than the high income threshold and on "other" grounds.
On 14 April 2020, the First Respondent filed a notice of objection to the unfair dismissal claim which outlined the grounds of objection as: the Applicant was not dismissed (s.386); the Applicant's employment did not meet the minimum employment period (s.383); and the Applicant's employment was not covered by an award or agreement, and he earned more than the high income threshold (s.382).
On 22 May 2020, the First Respondent filed submissions and evidence in support of its jurisdictional objections to the unfair dismissal claim.
On 12 June 2020, the Applicant filed submissions and evidence in response to the jurisdictional objections to the unfair dismissal claim.
On 19 June 2020, the First Respondent filed its submissions and further evidence in reply.
On 30 June 2020, the jurisdictional objections in relation to the unfair dismissal claim were heard.
• On 30 September 2020, the unfair dismissal claim was dismissed because it was determined that the Applicant's employment was award-free and agreement-free and his income exceeded the high income threshold.[9]
• On 27 January 2021, a Full Bench of the Commission issued a decision in which it granted permission to appeal and dismissed the appeal because the Full Bench was not persuaded that the decision at first instance was affected by appealable error.[10]
[12] The Applicant contended that a delay caused by a lack of jurisdiction is an exceptional circumstance within the meaning of s.366. He said it was the First Respondent that "actively and deliberately encouraged" the delay by: misleading and mispresenting that he was award covered; contesting the jurisdiction of the Commission in the unfair dismissal proceedings; and applying to delay the jurisdictional proceedings.
[13] The Applicant acknowledged that he had always been of the personal belief, since the creation of the Act, that he earned over the high income threshold and was not award covered.[11] But he maintained it was the First Respondent's on-boarding communications, which provided that he would be paid as a casual on-hire employee under the Clerks - Private Sector Award 2010 (Clerks Award), which gave him a reasonable expectation that the First Respondent would not challenge the unfair dismissal jurisdiction on the grounds of no award coverage.[12] The First Respondent also raised other objections to the unfair dismissal claim, which did not succeed (one of which may have been relevant to, but is not pressed, in these proceedings). The Applicant alleged that admissions about award coverage were made by the First Respondent before the Commission in the unfair dismissal proceedings at first instance but not taken into account by the primary decision maker and so he decided to exhaust the jurisdictional objections with an appeal to the Full Bench.
[14] The Applicant also acknowledged that: there are two "options" available to prosecute dismissal related claims (unfair dismissal or general protections); and the legislation prohibits simultaneous pursuit and damages being awarded for both. However he submitted that the intention is not to leave an employee orphaned from seeking a remedy, particularly in a case where the employer raised jurisdictional objections. He said his knowledge of the jurisdictions was only gained during the course of his unfair dismissal proceedings. And (although an authority was not filed in accordance with the directions or identified upon the Commission's inquiry), he referred to there being an authority for the propositions that: it is not possible to transfer one application to another; and that he would be "entitled" to an extension of the time for filing a general protections claim if his unfair dismissal claim was determined as lacking in jurisdiction.
[15] The Applicant also argued that there was no inaction on his part. The unfair dismissal application was filed without delay, within 21 days of his employment coming to an end. And, "a mere 3 days" after the Full Bench determination of the appeal, he decided not to pursue the unfair dismissal application further in a Court and filed this application.
[16] The Respondents contended that there is nothing exceptional about the Applicant's reason for the delay.
[17] The First Respondent asked the Commission to find that: the Applicant was on notice that he did not have unfair dismissal protection since as early as 31 March 2020 and nonetheless made an informed and deliberate decision to pursue the unfair dismissal claim. Even if the Applicant was misled about the matter of award coverage (which was denied), it contended that the Applicant could not be found to have relied on such misrepresentation and/or that any continued reliance upon it was not reasonable. In addition to its materials filed in support of the objections which articulated the jurisdictional problems in detail, it said that the Applicant now contradicts himself in contending he was misled by or relied on the content of the Agreement. It said he never signed or accepted the Agreement as binding, and had strongly contended in the unfair dismissal proceedings that the Commission should reject the First Respondent's reliance on it. It also said that this does not explain why the Applicant argued in the unfair dismissal proceedings that he did not earn over the high income threshold.
[18] The First Respondent took the Commission to an email communication of 16 November 2020 which was marked "(without prejudice)" in the subject line. The email is partly redacted but, on its face, suggests that the Applicant had other reason(s) for not pursuing the general protections claim at an earlier time. The Applicant asked the Commission not to receive the email as a basis for extinguishing his reliance on the First Respondent's alleged misrepresentation in deciding to pursue the unfair dismissal claim. Whilst the Commission is not bound by the rules of evidence and I did not exclude the record, I do not consider it to "extinguish" the reason put forward by the Applicant. I do not attribute weight to this record other than to the extent that it establishes the Applicant's plain awareness of the general protections jurisdiction as an alternative available course, which he had contemplated, as at November 2020. Having regard to the Applicant's written submissions and oral submissions at the hearing, this was not in dispute in any event.
[19] The Second Respondent (in its own right, and on behalf of the Third to Fifth Respondents) contended that the delay is "inordinate and inadequately explained". It argued that the Applicant cannot rely upon his choice to await the disposition of the unfair dismissal proceedings as an adequate explanation for the delay and to conclude otherwise would effectively neutralise the 21-day timeframe imposed by the legislature, which the Parliament intended would ordinarily be strictly adhered to. It argued that it was open to the Applicant to consider his position in respect of this application during the course of the first instance unfair dismissal proceedings or, alternatively, at the point of disposition on 30 September 2020, and to lodge an application under s.365 of the Act at that time.
[20] The Sixth Respondent declined the opportunity to file a substantive response to the claim pending the determination of the question of whether to extend the time for filing.
[21] It is not contentious that this general protections application was filed outside the statutory timeframe because the Applicant first pursued an unfair dismissal application, which ultimately did not proceed because it was found to lack the necessary jurisdiction, and that the unfair dismissal claim was made within 21 days of the employment coming to an end.
[22] It is acknowledged that the Applicant acted promptly in challenging his dismissal by lodging an unfair dismissal application made in similar terms to the substance of this general protections application.
[23] The Full Bench in the unfair dismissal proceedings concluded that:
the Applicant was employed by the First Respondent (and not the Second Respondent) and that the letter of appointment; and
• the Agreement set out the terms and conditions of the Applicant's employment with the First Respondent.[13]
[24] For present purposes, I agree with and adopt those conclusions.[14]
[25] That the Applicant initially relied on the reference to the Clerks Award in the Agreement in deciding to pursue his unfair dismissal claim is understandable. However, this is not a case where the Applicant, upon being notified of the jurisdictional problems with his unfair dismissal claim, chose to discontinue and promptly file a general protections claim.[15] Rather, he sought to test the jurisdictional limits right through to an appeal before a Full Bench of the Commission before filing this general protections claim. Even if the terms of the Agreement could be characterised as a "misrepresentation" as to the relevance of the Clerks Award, the First Respondent's position that he was not award covered was made clear from an early stage and ought to have resonated given this was consistent with the Applicant's own belief. But this was not the only basis on which he sought to defend the objections to the unfair dismissal jurisdiction. The Applicant did not deny having taken a "scattergun" approach, but for completeness I observe that the Applicant's claims for alternate coverage under a further 4 awards and an enterprise agreement relevant to the Second Respondent were tenuous at best and I did not understand the Applicant to contend that he was misled into believing that he earned over the high income threshold. Again, the problems with those arguments were made clear at an early stage.
[26] At the very latest, on 30 September 2020 the Applicant was in receipt of the first instance decision which determined those particular objections against him, and he then took the full 21 days to decide to exercise his appeal rights (filing his notice of appeal on 21 October 2020). On the materials before the Commission, including the Applicant's own admission, it is apparent that the Applicant made an assessment of his options and decided to continue with the unfair dismissal claim. I consider the Applicant was (or should have been) aware of the risk that his unfair dismissal claim may not succeed yet chose to continue those proceedings.
[27] I accept that the Applicant may have gained knowledge of the jurisdictions during the course of proceedings to date, but the Applicant was not ignorant as to the existence of the general protections jurisdiction. The Commission makes available information, via its telephone line and website, to assist unrepresented persons in understanding the available options and navigating the jurisdictions. The Applicant has demonstrated that he is capable of comprehending the differences and navigating the complexities. He was correct in identifying that if the wrong application is made then the proper approach is to withdraw, refile and then (if necessary) to seek an extension of the time for filing in accordance with s.366 of the Act.[16] However there is no unfettered entitlement to an extension of the time for filing in circumstances of having filed the wrong claim. In taking into account the matters at s.366, the Commission must reach the necessary state of satisfaction and each case is determined on its own particular facts. In any event, mere ignorance is not an acceptable or reasonable explanation for delay.[17]
[28] For completeness, the conduct of the First Respondent in objecting to the unfair dismissal jurisdiction, and that its "no dismissal" jurisdictional objection did not succeed and is not now pressed, does not assist the Applicant's case in this context. As the Full Bench in the unfair dismissal proceedings observed, the burden of establishing that he was protected from unfair dismissal at the time of the dismissal rested with the Applicant.[18] The decision as to whether to pursue the unfair dismissal application through to appeal before commencing a general protections claim was a matter for the Applicant, not the First Respondent.[19]
[29] In the particular circumstances of this case, I am not persuaded that there is an acceptable explanation for the delay and this weighs against a conclusion that there were exceptional circumstances in this case.
Action taken to dispute the dismissal - s.366(2)(b)
[30] In respect of s.366(2)(b), I am required to take into account any action taken by the Applicant to dispute his dismissal. Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.[20]
[31] In addition to filing the unfair dismissal claim on 12 March 2020, the Applicant gave evidence of having attempted to agitate matters related to the dismissal directly with the First and Second Respondents.
[32] The First Respondent did not dispute that the Applicant took action to dispute the dismissal as relevant to this factor. The Second to Fifth Respondents accepted that the Applicant's action in filing an unfair dismissal claim on 12 March 2020 was action to be taken into account in this respect.
[33] I find the action taken by the Applicant to dispute the dismissal weighs in favour of a finding of exceptional circumstances.
[34] This factor relates to prejudice to the First Respondent as the Applicant's employer, including prejudice caused by the delay.
[35] Other than general contentions of prejudice, the First Respondent contended that it would suffer prejudice because the Applicant would essentially be allowed to re-litigate the same factual circumstances it has already been put to the time and expense of defending. It also identified that one key witness (the decision maker) is no longer in its employ and under no compulsion to cooperate.
[36] The Applicant said there was no prejudice because there was no delay in filing the unfair dismissal application. He also pointed to correspondence from the Second Respondent which he said conceded this point and/or estopped it from arguing any prejudice, given its preference for the Commission to deal with the matter.
[37] Naturally an extension of the time for filing this claim would allow further litigation in relation to the matter of the Applicant's dismissal, the factual substance of the two claims being essentially the same. However, whilst inconvenient, the initial litigation related to jurisdictional objections subject of the specific unfair dismissal regime and that which may have been relevant to this jurisdiction was determined and is no longer pressed. The decision maker may be compelled to give evidence on application. Beyond this, I am not persuaded that the First Respondent would suffer any particular prejudice if the time for lodging this claim were extended.
[38] I consider this to be a neutral factor in the present case.
[39] For completeness, the other Respondents did not identify any particular prejudice for which I would attribute any weight even if it were relevant to this consideration.
[40] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
[41] The Applicant identified a range of actions which may constitute adverse action, including as related to his dismissal. The Applicant claims that there was adverse action taken in contravention of s.340, because he made an inquiry and a complaint about a workplace right(s) and/or to prevent him from exercising the workplace right(s). He also claims contraventions of s.343 (coercion), s.344 (undue influence or pressure), s.345 (misrepresentations), s.351 (discrimination, on the basis of his age) and s.352 (dismissal due to temporary absence from work because of illness or injury) of the Act.
[42] The Respondents strongly denied the alleged contraventions. The First Respondent submitted that the only reason the Applicant was dismissed was because the Second Respondent no longer wanted the Applicant to perform work and the First Respondent did not have any alternative positions available for him to fill as a casual labour-hire employee. The Second to Fifth Respondents submitted it was unclear what particular workplace right(s) the Applicant claimed to have and how that was infringed, but pointed to contemporaneous documentation before the Commission in support of its contention that the reason for the termination of the Applicant's placement was not related to any complaint or inquiry the Applicant may have had. The other contraventions were also denied, including by reason of the relationship between the Second to Fifth Respondents and the Applicant.
[43] A decision by a host employer to no longer require the services of a labour hire employee, engaged via a labour hire company, may conceivably give rise to a valid claim for contravention of the general protections provisions of the Act. Having examined the materials before the Commission, it is evident to me that the merits of this application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time.
[44] Accordingly, I consider the merits to be a neutral consideration.
[45] For completeness, although the Applicant foreshadowed other claim(s) related to his employment, I have made no findings about those matters for the purposes of determining this application. Such claims are properly to be pursued in a court of competent jurisdiction and ultimately a court would need to reach its own conclusions on those matters.
Fairness as between the person and other persons in a like position - s.366(2)(e)
[46] Applications to extend time generally turn on their own facts. The parties did not draw to my attention any relevant persons or specific cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position.
[47] I consider this to be a neutral consideration in the present matter.
[48] The time limit that applies to the exercise of a person's right to bring an application under s.365 reflects the Parliament's intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
[49] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. That there is no acceptable, reasonable or credible explanation for the delay in filing the application weighs strongly against the grant of an extension in this case. The action taken to dispute the dismissal weighs in favour, and the remaining factors weigh neutrally. In my view, the circumstances of this case are not exceptional, either individually or when considered together.
[50] I decline to grant an extension of time under s.366(2). Accordingly, the Applicant's application under s.365 of the Act is dismissed.
C. McDermott, of Counsel for the Second, Third, Fourth and Fifth Respondents.
[1] F8 Application filed 29 January 2021.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].
[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 (Perry) at [21].
[5] Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd [2018] FWC 7355 at [7].
[7] Green v Bilco Group Pty Ltd [2018] FWC 6818 at [8].
[8] 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 at [23].
[9] Paul Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment [2020] FWC 4684 (First Instance Unfair Dismissal Decision).
[10]Paul Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment [2021] FWCFB 154 (Full Bench Unfair Dismissal Decision).
[11] Ibid at [48]; Applicant's Submissions filed 6 April 2021 at 15; and at the Hearing on 12 April 2021.
[12] The relevant document is an agreement, referred to by the Applicant as the "ambush agreement", attached to a letter of appointment issued by email of 28 May 2019, at Annexure C1 (the Agreement).
[13] Full Bench Unfair Dismissal Decision at [30] and [38].
[14] In the original application and at the hearing, the Applicant accepted this but reserved his right to argue that Second Respondent was the "sham employer" pursuant to an alleged sham contract arrangement.
[15] See, for example, Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 in contrast, for example, to Mr Ricky King v Gourmet Beef Pty Ltd [2017] FWC 3866.
[16] Peter Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 at [31].
[18] Full Bench Unfair Dismissal Decision at [38].
[19] Jeremy Snyder v Helena College Council, Inc. T/A Helena College [2018] FWCFB 4734.
[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300_._
Printed by authority of the Commonwealth Government Printer
(1995) 67 IR 298