Amir Fazlhamidi v AGL Macquarie Pty Ltd [2020] FWC 3145

1 Fair Work Act 2009 s.394—Unfair dismissal Amir Fazlhamidi v AGL Macquarie Pty Ltd (U2020/1376) DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 16 JUNE 2020 Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed. Introduction [1] This decision concerns an application by Mr Amir Fazlhamidi (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). [2] The Applicant alleges that he was employed by AGL Macquarie Limited (Respondent) and his dismissal from his employment with the Respondent took effect on 15 November 2019. The Respondent contends that the Applicant was not, at any time, employed by it. The Respondent contends the Applicant was an employee, first of Hays Specialist Recruitment (Australia) Pty Limited (Hays) and later of Recruitment Solutions (A Division of Chandler Macleod Pty Ltd (Chandler Macleod)), while the Applicant was engaged to work as an outage scheduler at the AGL Bayswater Power Plant. There is no dispute that the Applicant ceased work for the Respondent on 15 November 2019. The unfair dismissal application was lodged on 8 February 2020. [3] On 9 June 2020, I conducted a hearing, by telephone, in relation to the following jurisdictional objections raised by the Respondent:  whether the Respondent was the Applicant’s employer; and  whether an extension of time should be granted to the Applicant to lodge his unfair dismissal application in the Fair Work Commission (Commission). [4] At the hearing on 9 June 2020, the Applicant gave evidence and the Respondent adduced evidence from Ms Kate Lehane, Senior Corporate Lawyer – People, Culture and Safety, Mr Darryl Messenger, Major Outage Manager, and Mr Nathan Nowlan, Minor Outage Manager. [2020] FWC 3145 [Note: An appeal pursuant to s.604 (C2020/5216) was lodged against this decision- refer to Full Bench decision dated 22 December 2020 [[2020] FWCFB 6497] for the result of the appeal.] DECISION -- 1 of 6 -- [2020] FWC 3145 2 Extension of time application [5] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). Although there is a dispute about whether the Applicant was employed by the Respondent, I will take the Applicant’s case at its highest for the purpose of determining the out of time issue and proceed on the basis that his dismissal took effect on 15 November 2019. The period of 21 days ended at midnight on 6 December 2019. The application was therefore filed 64 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request. [6] The Act allows the Commission to extend the period within which an unfair dismissal application 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 [7] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) 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. [8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) whether the person first became aware of the dismissal after it had taken effect; (c) any action taken by the person to dispute the dismissal; (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [9] The requirement that these matters 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 the Application. 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13] 2 Ibid -- 2 of 6 -- [2020] FWC 3145 3 Reason for the delay [10] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4 [11] 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 of the circumstances must be considered.5 [12] The Applicant says that on 11 November 2019 he was notified by Mr Messenger that he needed to leave the Respondent by the end of the week due to a change of plan and a budget overrun.6 The Applicant also says that on 11 November 2019 Mr Messenger informed him of ‘good news’ and ‘bad news’. The ‘good news’ was that Respondent had decided to make his role permanent. The ‘bad news’ was the Respondent would not be starting to plan the next project until January 2020. Mr Messenger told Applicant that he could apply for the role through two agencies: Chandler Macleod and GWG. [13] The Applicant finished work with the Respondent on 15 November 2020 and has not worked for the Respondent since that time. After leaving the Respondent on 15 November 2019 the Applicant applied, on 4 December 2019, through Chandler Macleod for the role of Scheduler with the Respondent. The Applicant also applied for that role through GWG. On 27 January 2020, the Applicant was informed by Chandler Macleod that his application for the permanent role with the Respondent was unsuccessful. The Applicant asked for the reason why he was unsuccessful in his application for the role and was advised that the Respondent was looking for a candidate with slightly different experience. On 7 February 2020, the Applicant had a meeting with Chandler Macleod to discuss his ‘issues’.7 At that meeting the Applicant says that he did not get any satisfactory responses. The Applicant then filed his unfair dismissal application in the Commission on 8 February 2020.8 [14] The Applicant also says that the Respondent advertised a permanent role in March 2020 for the scheduling role the Applicant worked in. [15] The Applicant delayed filing his unfair dismissal application in the Commission until after he found out that his application for the role of Scheduler had been unsuccessful and he had done all he could to question that decision with Chandler Macleod. The Applicant did not 3 Long v Keolis Downer [2018] FWCFB 4109 at [40] 4 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] 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39] 6 Ex 7 Ex A2 8 Ex A2 -- 3 of 6 -- [2020] FWC 3145 4 want to weaken his relationship with the Respondent by applying for unfair dismissal before he found out about his application for the role of Scheduler with the Respondent. Further, the Applicant did not delay between his meeting with Chandler Macleod on 7 February 2020 to discuss his ‘issues’ and filing his unfair dismissal application in the Commission on 8 February 2020. [16] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. Although I can understand why the Applicant made his decision to delay filing his application for unfair dismissal, that was a decision the Applicant took for his own reasons and to maximise his prospect of succeeding in his application for the role of Scheduler. The Applicant was not prevented from filing his unfair dismissal application at an earlier time, nor did he, in my view, have an acceptable or reasonable explanation for the 64 day delay or any part of it. [17] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect [18] The Applicant says he was not notified of his dismissal.9 The Respondent agrees that it did not notify the Applicant of his dismissal because it contends it did not employ the Applicant and therefore did not dismiss him. However, it is clear that on 11 November 2019, the Applicant was told by Mr Messenger that he needed to leave the Respondent by the end of the week. The Applicant accepts that he left the Respondent on 15 November 2019 and has not returned to work for the Respondent since that time. That is the relevant background to the Applicant’s contention that his dismissal took effect on 15 November 2019. [19] The Applicant had the full period of 21 days from 15 November 2019 to lodge his unfair dismissal application. In all the circumstances, I consider this to be a neutral consideration. Action taken to dispute the dismissal [20] The Applicant raised ‘issues’ with Chandler Macleod when he found out that his application for the role of Scheduler was not successful.10 I consider this to constitute action taken by the Applicant to dispute his alleged dismissal by the Respondent. This circumstance weighs in favour of a conclusion that there are exceptional circumstances. Prejudice to the employer [21] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. 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 of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. 9 Ex A3 10 Ex A2 -- 4 of 6 -- [2020] FWC 3145 5 Merits of the application [22] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, I am of the view that the Applicant has a weak prima facie case in relation to the question of whether he was employed by the Respondent. The Applicant accepts that he was initially engaged by Hays to work for the Respondent. He also accepts that in July 2019 he was transferred from Hays to Chandler Macleod, but continued working on assignment for the Respondent. The transfer took place because the Respondent made a decision to source labour hire workers at its facilities exclusively through Chandler Macleod; before then, the Respondent had been using both Chandler Macleod and Hays to supply labour hire workers. The Applicant’s assignment, through Chandler Macleod, to work for the Respondent came to an end on 15 November 2019. The Respondent has a strong prima facie case that its relationship with each of Hays and later Chandler Macleod in respect of the Applicant’s deployment to work on assignment for the Respondent was that of a genuine commercial labour host and provider. The Applicant contends that when he was first employed by Hays to work on assignment for the Respondent, he was told by Ms Johnston of Hays that his assignment with the Respondent would be for 12 months initially and the Respondent was happy to give him a permanent role thereafter if he liked.11 The Applicant does not suggest that any manager or employee of the Respondent made such a promise to him. Even if such a promise was made by Ms Johnston and she had actual or ostensible authority to make it on behalf of the Respondent, there is no doubt that the Respondent did not fulfil the promise; it did not give the Applicant a permanent role. Instead, it told the Applicant that he could apply for the role of Scheduler. The Respondent has a strong prima facie case that the Applicant continued to be employed by Chandler Macleod, not the Respondent, from July 2019 until the conclusion of his work assignment with the Respondent on 15 November 2019. [23] For the reasons given I consider the merits of the present case to tell against an extension of time. Fairness as between the person and other persons in a similar position [24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party 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 [25] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of 11 Ex A4 at [7] -- 5 of 6 -- [2020] FWC 3145 6 time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. [26] Because I have declined to grant an extension of time, there is no need to determine the Respondent’s second jurisdictional objection that the Applicant was not, at any time, employed by the Respondent. DEPUTY PRESIDENT Appearances: A Fazlhamidi, on behalf of himself. P Zielinski, solicitor, with H Hamberger, solicitor, on behalf of the Respondent. Hearing details: 2020. Newcastle: 9 June. Printed by authority of the Commonwealth Government Printer <PR720234> -- 6 of 6 --