Allan Gabriel v Titan Recruitment Pty Ltd T/A Titan Recruitment [2023] FWC 230

1 Fair Work Act 2009 s.365—General protections Allan Gabriel v Titan Recruitment Pty Ltd T/A Titan Recruitment (C2022/7334) DEPUTY PRESIDENT CLANCY MELBOURNE, 25 JANUARY 2023 Application for the Commission to deal with a dismissal dispute under s.365 of the Act – application filed 42 days out of time – circumstances exceptional due to representational error by Unfair Dismissals Australia Pty Ltd– extension granted. [1] On 4 November 2022, Mr Allan Gabriel made a general protections application involving dismissal to the Fair Work Commission pursuant to s.365 of the Fair Work Act 2009 (the Act). As it was evident from Mr Gabriel’s Form F8 – General Protections Application Involving Dismissal (Form F8) that the application was not made within 21 calendar days after Mr Gabriel’s dismissal took effect, Mr Gabriel was required to seek an extension of time in which to file his general protections application. The Respondent to this application is Titan Recruitment Pty Ltd T/A Titan Recruitment (Titan) and in its Form F8A – Response to General Protections Application (Form F8A) it objected to Mr Gabriel’s application on the basis that the application was lodged out of time. [2] On 15 November 2022, Deputy President Young, as she then was, issued directions for the filing and service of material. On 23 December 2022, the matter was allocated to me for determination. I conducted a determinative conference on 23 January 2023 with reference to the material filed by the parties in accordance with the 15 November 2022 Directions. Mr Gabriel appeared and gave evidence on behalf of himself. The Respondent was represented by Mr Sandy Forrest. Legislation [3] Section 366 of the Act sets out the statutory requirements for the timing of an application made pursuant to s.365: “366 Time for application (1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or [2023] FWC 230 DECISION -- 1 of 9 -- [2023] FWC 230 2 (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: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position.” [4] The Act allows the Commission to extend the period within which an application under s.365 of the Act must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may 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.2 [5] The requirement that the matters outlined in s 366(2) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Mr Gabriel’s application for an extension of time. Reason for the delay – s.366(2)(a) [6] 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 explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all the circumstances must be considered.3 [7] A dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.4 In this case it is not in dispute that Mr Gabriel was notified of his dismissal on 2 September 2022 in circumstances I outline below. Therefore, the delay required to be considered in this case is the period beyond the expiration of the prescribed 21-day period after 2 September 2022.5 As such, the delay does not include the period from 2 September 2022 until the end of the 21-day period, which in this case ended at midnight on 23 September 2022. However, the circumstances from 2 September 2022 must be considered when assessing whether there is a credible reason for the 42-day delay in this case, or any part of that delay, beyond the 21-day period which ended at midnight on 23 September 2022.6 -- 2 of 9 -- [2023] FWC 230 3 [8] Having regard to the material filed with the Commission, the evidence from Mr Gabriel and information provided by Mr Forrest, I note the following factual background: • Mr Gabriel was an employee of Titan pursuant to a contract of employment dated 14 February 2020. • On or about 9 March 2020, Mr Gabriel was placed with one of Titan’s clients, Calibre Professional Services One Pty Ltd (Calibre), and he performed work for Calibre until 2 September 2022. • On 2 September 2022, Mr Gabriel was advised by a project manager of Calibre, Mr Owen Bobledyk, that Calibre no longer required his services because of performance issues. Mr Gabriel also received confirmation of this from an HR Manager of Calibre. • Mr Forrest confirmed that on 2 September 2022, Titan was advised by Mr Cameron Birchall, a Calibre human resources manager, that Mr Gabriel’s services were no longer required by Calibre. • Mr Forrest said that Titan subsequently gave Mr Gabriel one day’s notice of the termination of his contract of employment with Titan, exercising a right in the contract of employment to do so. • Mr Gabriel engaged Unfair Dismissals Australia Pty Ltd to act on his behalf and on 19 September 2022, he emailed them documentation for this purpose, which included his contract of employment dated 14 February 2020. • Mr Gabriel said he was told by Mr Mark Crossley of Unfair Dismissals Australia Pty Ltd that he could not proceed against two Respondents and that because the harassment he alleges took place occurred at Calibre and it was the perpetrator, Calibre was liable. • Mr Gabriel also said that when he asked who the correct Respondent was, the answer he was given comprised of words to the effect of “it looks like Calibre.” • On 21 September 2022, Unfair Dismissals Australia Pty Ltd filed a General Protections application involving dismissal with the Commission on behalf of Mr Gabriel naming Calibre as Respondent. This was within the 21-day period after 2 September 2022. • This application was allocated Commission file number C2022/6481. • On 9 October 2022, Calibre filed its Form F8A – Response to General Protections Application form in matter C2022/6481, in which they asserted Mr Gabriel was an employee of Titan and had never been an employee of Calibre. • Mr Gabriel recalled receiving this response but said that because of the advice he had received from Unfair Dismissals Australia Pty Ltd, he did not think anything of it until 3 November 2022. -- 3 of 9 -- [2023] FWC 230 4 • Mr Gabriel participated in a telephone conciliation before a Commission conciliator on 3 November 2022 and was represented by Mr Crossley. He said this was the first time he became aware he could make an application against Titan on the basis that Titan was the correct employer. • Mr Gabriel said he was told by Mr Crossley that he would need to file against Titan and when he asked Mr Crossley why the correct employer had not previously been identified, Mr Crossley said ‘that was your direction”. Mr Gabriel said he denied ever having made such a direction. He said he put to Mr Crossley that Mr Crossley had been asked to identify the correct Respondent. • Mr Gabriel said he then instructed Mr Crossley to file the Form F8A against Titan. This was filed by Unfair Dismissals Australia Pty Ltd on 4 November 2022 and was allocated Commission file number C2022/7334. • Also on 4 November 2022, a Form-50 Notice of discontinuance was filed by Unfair Dismissals Australia Pty Ltd in matter C2022/6481. Mr Gabriel said he had no knowledge of this and that at no stage did he instruct filed by Unfair Dismissals Australia Pty Ltd to discontinue against Calibre on his behalf. • On 15 November 2022, Deputy President Young issued Directions which required Mr Gabriel to file and serve an Outline of Argument, further submissions, witness statements and evidence upon which he sought to rely by no later than 5.00pm on 29 November 2022. • At 11.52am on 29 November 2022, Unfair Dismissals Australia Pty Ltd filed a document entitled “Extension of Time Submissions” on behalf of Mr Gabrie but no other material. • On 14 December 2022, following a dispute about professional fees between Mr Gabriel and Unfair Dismissals Australia Pty Ltd, a Form F54 Notice of representative ceasing to act was filed by Unfair Dismissals Australia Pty Ltd in relation to Mr Gabriel’s application against Titan (C2022/7334). • Mr Gabriel claims he had lost confidence in Unfair Dismissals Australia Pty Ltd by this time. [9] There is nothing before me to dispute this factual background. I note that apart from outlining in the Form F8 that “the claim was initially lodged against the incorrect Respondent”,7 Unfair Dismissals Australia Pty Ltd elected not to address the background facts in the “Extension of Time Submissions” it filed on behalf of Mr Gabriel, despite it being open to Unfair Dismissals Australia Pty Ltd to do so. The “Extension of Time Submissions” document is of such a poor quality that it is embarrassing. I am hardly surprised the author did not put their name to it. I take note of the fact that Unfair Dismissals Australia Pty Ltd elected not to address the reason for the delay at all in the “Extension of Time Submissions” document. There is nothing before me that casts doubt on Mr Gabriel’s account of the reason for the delay. -- 4 of 9 -- [2023] FWC 230 5 [10] I attribute Mr Gabriel’s 42-day delay in filing the Form F8A against Titan (C2022/7334) to representative error because for this period he had relied on the advice from Unfair Dismissals Australia Pty Ltd. It is important to note that Mr Gabriel consulted Unfair Dismissals Australia Pty Ltd at an early stage and provided them with documentation so as to enable the General Protections application naming Calibre as Respondent8 to be filed within the first 21 days after 2 September 2022. During that period and thereafter until 3 November 2022, Mr Gabriel relied on the advice from Unfair Dismissals Australia Pty Ltd that the correct Respondent for his s.365 claim was Calibre and that he could not proceed against two Respondents. [11] The Unfair Dismissals Australia website includes the self-proclamation that they are “Industrial Relations Experts”, however in this case, Unfair Dismissals Australia Pty Ltd appears to have demonstrated a fundamental lack of care and attention to Mr Gabriel’s case. The Form F8 in matter C2022/6481 asserted Mr Gabriel was employed by Calibre. It then stated Mr Gabriel “joined Titan Recruitment on 9 March 2022”. Finally, the premise of this application was that Calibre dismissed Mr Gabriel. None of these assertions were correct. Had they properly perused the documentation provided to them by Mr Gabriel, Unfair Dismissals Australia Pty Ltd would have discovered that Mr Gabriel had a contract of employment with Titan, not Calibre. As any competent adviser should know, a dismissal involves an act or conduct by an employer. [12] It is also of concern that while the Unfair Dismissals Australia Pty Ltd website purports to provide services in relation to adverse action/general protections claims, it provides very little detail of the issues or processes involved. In particular, the website makes no mention of general protection court applications or the implications that flow from court proceedings in terms of time and cost. Further, the website also promotes a ‘No-win, No Fee’ option, which will undoubtedly have some superficial appeal, but such an arrangement does not appear to have been applicable to Mr Gabriel. Mr Gabriel disclosed there had been a fee payable for the representation provided by Unfair Dismissals Australia Pty Ltd up until completion of the conciliation phase even though it did not appear to result in a “win” for him. Mr Gabriel also disclosed that a further fee became payable if he wanted Unfair Dismissals Australia Pty Ltd to prepare the material he was required to file and serve pursuant to the Directions of Deputy President Young issued on 15 November 2022. [13] Regrettably, the Commission is all too frequently left to case-manage applications in which practitioners offering ‘No-win, No Fee’ arrangements have abruptly ceased to act for applicants shortly before their material is due to be filed. This leaves the applicants concerned adrift. Numerous complaints have been made by employers to Members of the Commission and Commission staff about the apparent practice of some firms launching speculative and unmeritorious claims in an attempt to extract “go away” money at an early stage, and further, that these firms have no intention of seeing a matter through beyond the conciliation stage. [14] As outlined above, even though Unfair Dismissal Australia Pty Ltd filed the “Extension of Time Submissions” document on behalf of Mr Gabriel, the document represented very little and was almost completely devoid of persuasive impact. Mr Gabriel also complained about a lack of attention from Unfair Dismissals Australia Pty Ltd, disclosing that he was largely left to communicate with Unfair Dismissals Australia Pty Ltd through a generic email address. -- 5 of 9 -- [2023] FWC 230 6 Finally, and most seriously, there is the allegation that Unfair Dismissals Australia Pty Ltd discontinued Mr Gabriel’s application against Calibre without having been instructed to do so. [15] Finally, I have noted that once Mr Gabriel became aware that he could make application against Titan, he did not delay and his application was filed with the Commission approximately 24 hours later. [16] I am therefore satisfied that there was representative error in this case and that it was wholly responsible for the delay. I am not persuaded Mr Gabriel contributed either to the error of Unfair Dismissals Australia Pty Ltd or to any period of the delay. The representative error provides an acceptable explanation for the whole of the period of delay and so weighs in favour of Mr Gabriel. Action taken to dispute the dismissal – s.366(2)(b) [17] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may be treated as favouring the grant of an extension of time.9 [18] Having sought advice, Mr Gabriel disputed his dismissal by initially filing a general protections application on 21 September 2022 against Calibre. Titan submits that while Mr Gabriel took some action to dispute his dismissal, there was nothing exceptional about his action. I am satisfied that Mr Gabriel’s conduct can be characterised as taking action to dispute his dismissal. In the circumstances, this weighs in favour of an extension of time. Prejudice to the employer – s.366(2)(c) [19] Neither party contends there is prejudice to Titan, including prejudice caused by the delay. I cannot identify any greater prejudice that would accrue to Titan caused by the application being dealt with now than there would have been had it been made within the 21- day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring an extension, I would attribute it very little weight in the consideration of whether there are exceptional circumstances. Merits of the application – s.366(2)(a) [20] I am required to “take into account” the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. [21] In the Form F8, Mr Gabriel contends that Titan contravened the general protections provisions of the Act by taking adverse action in the form of dismissing him because he exercised his workplace right to make complaints and enquiries in relation to incidents of bullying and harassment that he had experienced at work. Mr Gabriel asserts these complaints and enquiries were made on several occasions from May 2022. He claims that while some of his complaints were acknowledged by Titan, others were not, with Titan taking no action to resolve his concerns. Mr Gabriel alleges that given the “short nexus” between his complaint -- 6 of 9 -- [2023] FWC 230 7 and his dismissal, any reasonable person would conclude he was dismissed for this prescribed reason. [22] Titan maintains that the reasons for Mr Gabriel’s dismissal were due to the refusal of their host client (Calibre) to continue to engage Mr Gabriel’s services as it no longer required them. In these circumstances, Titan says it was contractually bound not to continue Mr Gabriel’s engagement with Calibre. Titan further submits that it was unsuccessful in obtaining an alternative suitable position for Mr Gabriel including a placement with another client and as such, it (Titan) did not have any reasonable alternative but to dismiss him. Titan asserts these were the only reasons for Mr Gabriel’s dismissal. [23] The weight to be given to the merits consideration in an application for an extension of time is dependent on the extent to which there is merit in the substantive application.10 Having reviewed the material and heard from the parties, I consider the merits of Mr Gabriel’s application turn on contested points of fact that would need to be tested, including under cross- examination if an extension of time were granted and the matter were to proceed and the parties would need the opportunity to fulsomely present their respective cases. [24] Based on the limited material before me, I am not able to make any firm assessment of the merits. I do not consider the merits to tell for or against an extension of time. This is a neutral consideration. Fairness as between the person and other persons in a similar position – s.366(2)(a) [25] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. However, cases of this kind will generally turn on their own facts. [26] Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration. Conclusion [27] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so. [28] The task before me in determining whether to grant this extension of time application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd: “[38] 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 -- 7 of 9 -- [2023] FWC 230 8 exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. [39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any 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 the applicant’s favour, though, as we mention later, it is a question of degree and insight. However 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.”11 [29] I have had regard to and weighed each of the matters I am required to take into account under s.366(2), and having considered them collectively, I am satisfied that there are exceptional circumstances. I have outlined above that there was an acceptable reason for the delay and this weighs in favour of an extension of time. The only other relevant matter weighing in favour of an extension of time is Mr Gabriel seeking of advice post 2 September 2022, but this is of little significance. I consider the balance of the matters in s.366(2) to be neutral however I am ultimately satisfied there are exceptional circumstances because of the representative error from Unfair Dismissals Australia Pty Ltd, which caused the late filing of Mr Gabriel’s application in this matter. [30] On balance, I am satisfied that it is appropriate to exercise my discretion to extend the time for Mr Gabriel to make his application under s.365 of the Act to 4 November 2022 because I do not consider that Mr Gabriel should be denied the opportunity to press his application due to the failings of Unfair Dismissals Australia Pty Ltd as his representative. An Order to that effect will be issued with this Decision. [31] If I had the power to order costs against Unfair Dismissals Australia Pty Ltd on my own initiative, I would invite submissions. As things stand however, an order for costs can only be made on application by Titan in accordance with s.377 of the Act. [32] Accordingly, the matter will now be the subject of a conference and the parties will be notified of the listing details in due course. DEPUTY PRESIDENT Appearances: Mr A Gabriel on his own behalf. Mr S Forrest for Titan Recruitment Pty Ltd. -- 8 of 9 -- [2023] FWC 230 9 Hearing details: 2023. Melbourne (by telephone). January 23. Printed by authority of the Commonwealth Government Printer <PR749990> 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. 4 Ayub v NSW Trains [2016] FWCFB 5500. 5 Fair Work Act 2009 (Cth), s.366(1). 6 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]. 7 Form F8 – General Protections Application Involving Dismissal dated 4 November 2022 in Matter C2022/7334 at 1.4. 8 Commission matter C2022/6481. 9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300. 10 Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71]. 11 [2018] FWCFB 901. -- 9 of 9 --