Anthony (Tony) Keene v Boral [2020] FWC 5003

1 Fair Work Act 2009 s.394—Unfair dismissal Anthony (Tony) Keene v Boral (U2020/11070) COMMISSIONER WILSON MELBOURNE, 17 SEPTEMBER 2020 Application for an unfair dismissal remedy – extension of time; whether “exceptional circumstances” – no exceptional circumstances - application dismissed [1] This decision concerns an application made by Anthony Keene alleging unfair dismissal against Boral Resources (Vic) Pty Ltd (Boral). Mr Keene was notified verbally and in writing on Friday, 8 December 2017 that Boral no longer required his services, with that notification taking effect on Monday, 15 January 2018. Mr Keene’s application for unfair dismissal remedy was lodged in the Fair Work Commission on Friday, 14 August 2020. [2] The matter of whether Mr Keene was an employee of Boral or an independent contractor engaged by Boral under a contract for services through a company of which he was a Director is a contested matter. [3] Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that Mr Keene’s application was made outside of the statutory time limit, with it having been made 921 days after the expiry of the 21 day time period allowed for by the FW Act, which ended on Monday, 5 February 2018. [4] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Keene’s application. It is to be noted that Boral object to whether Mr Keene was an employee, as well as the proposition the Commission should allow an extension of time for the filing of an unfair dismissal application. [5] Mr Keene was represented by Ms Rosa Raco of WR Law Pty Ltd, solicitors, and Boral by Mr Luis Izzo of Australian Business Lawyers and Advisors, with each appearing on a grant of permission by me for legal representation pursuant to the provisions of s.596(2) of the FW Act. [2020] FWC 5003 DECISION -- 1 of 12 -- [2020] FWC 5003 2 [6] Evidence was received from Mr Keene on his own behalf. Witness Statements were received from the Respondent on behalf of three potential witnesses for Boral, John Matthew, Operations Manager Victoria East, Steve Carra, Fleet Manager Concrete, and Sam Needs, Area Manager North West Victoria Country. Because each of these Witness Statements dealt either with Boral’s objection that Mr Keene was not an employee, or with the merits of his unfair dismissal application I advised the parties that I did not require oral evidence from these witnesses, but would accept their statements as a precis of their examination-in-chief, taking it into account for the purposes of s.394(3)(e), being one of the criteria for consideration of whether the Commission may be satisfied there are exceptional circumstances warranting an extension of time for the making of an unfair dismissal application. [7] In considering an application for an extension of time for the making of an unfair dismissal application, the FW Act requires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion1 and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.2 [8] I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Mr Keene’s case and an extension of time should not be granted for the making of his unfair dismissal application. BACKGROUND [9] The contractual relationship between Mr Keene or a company of which he was a Director and with Boral is disputed. Mr Keene argues that he was an employee of Boral whereas the Respondent argues that it had a relationship with Keene Transport Pty Ltd of which Mr Keene was a Director and no employment relationship existed sufficient to enable a finding by the Commission that Mr Keene was an employee and thereby a person protected from unfair dismissal. [10] Mr Keene or his company was given notice of Boral’s termination of contract on 8 December 2017 and the termination took effect on 15 January 2018. [11] Mr Keene argued through his submissions and evidence that he has been let down over a 20-month period by three separate representatives, his union and two Bendigo law firms. Having sought out the assistance of each they either did not advise he could make an unfair dismissal application since he was an employee and not an independent contractor or neglected to let him know unfair dismissal applications needed to be lodged in the Commission within 21 days of the dismissal taking effect. It was only in August 2020 when he learned from his second lawyer that a time-limit for making an unfair dismissal application applied, who also later suggested he go to a third lawyer with experience in employment matters. 1 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, [9]. 2 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21]. -- 2 of 12 -- [2020] FWC 5003 3 [12] Leaving aside the disputed contractual relationship between the parties there is at least agreement between them as to the circumstances by which Mr Keene was no longer required for work. [13] Mr Keene drove a concrete truck, servicing areas around Bendigo, and his relationship with Boral is set out in a Concrete Cartage Agreement between Boral Resources (Vic) Pty Ltd and Keene Transport Pty Ltd with the services commencement date being 1 August 2014. Keene Transport Pty Ltd was obliged by that contract to provide a suitable manned vehicle, with payment being made by Boral for services provided according to a formula taking into consideration the size of the vehicle and the amount transported, and with certain surcharges that might be paid as well. Mr Keene provided Boral with a statutory declaration that a truck was purchased for $45,000 + GST. [14] On what is said to have been a 38° day on 29 November 2017, Mr Keene engaged in some horseplay and poured a capful of water down the back of a fellow driver when the two were in the Boral tearoom. Even though Mr Keene says what occurred was part of a “joking culture amongst the drivers”3, the incident led to him no longer being required by Boral for work. After the November 2017 incident there was a short investigation by Boral, which viewed the matter seriously. There was some exchange by Boral managers with Mr Keene, but insufficient from Mr Keene’s perspective who argued that what occurred was “just a bit of fun”4 with him also believing that the termination was disproportionate to what had taken place. [15] Even so, the Boral managers did not view the situation in the same way and on 8 December 2017 Mr Keene was informed firstly by telephone and then by letter that the contract his company held with Boral was to be terminated. The letter advised Mr Keene that the termination would take effect on 15 January 2018. [16] Having been terminated by Boral, on 8 January 2018 Mr Keene commenced working with another company as a casual driver which continued until present times. [17] After being advised on Friday, 8 December 2017 that Boral no longer required Mr Keene, or the services of his company, Mr Keene contacted his union which then provided services to him over a period between 13 December 2017 and August 2018, or perhaps later. Mr Keene says that the union representatives said to him on at least two occasions words to the effect “I will look after this for you”, but at no time told him there was a time-limit in which to file an unfair dismissal application. [18] In April 2019 or perhaps earlier Mr Keene retained the first law firm who made some endeavours to contact Mr Keene’s union about what they had done. In January 2020 or thereabouts the first law firm recommended Mr Keene seek legal advice elsewhere. [19] On 4 February 2020 Mr Keene approached the second law firm who made some representations to Boral on his behalf. It was not until 7 August 2020 that the second law firm told Mr Keene about the time limit associated with the filing of an unfair dismissal application. That advice led Mr Keene to himself lodge an unfair dismissal application on 14 August 2020. 3 Exhibit A2, Applicant Outline of Submissions, 31 August 2020, [10]. 4 Ibid, [17]. -- 3 of 12 -- [2020] FWC 5003 4 [20] After being given Directions by me associated with these extension of time proceedings, Mr Keene was advised by the second law firm that it too was unable to assist him and that he should engage a third firm, being one which specialised in employment matters. LEGISLATION [21] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act: “394 Application for unfair dismissal remedy (1) …. (3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position.” CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT [22] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. [23] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows: “[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 -- 4 of 12 -- [2020] FWC 5003 5 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. [14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” 5 [24] 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 extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.6 [25] In considering whether an extension of time should be granted to Mr Keene, I am required to consider all of the criteria in s.394(3), which I now do. 1. The reason for the delay [26] The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.7 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.8 An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.9 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.10 [27] The delay to be considered in matters such as these is the delay in making the application after the expiry of the statutory time limit. In Mr Keene’s case the relevant period to be considered is that after the last day for a lodgement to be within time, Monday, 5 February 2018. [28] Mr Keene attributes the delay in making his application to representative error on the part of three different representatives; his union and two separate lawyers. He says that he left his matter with each of those representatives and expected them to take action, but that they did not. 5 Nulty v Blue Star Group, 2011, 203 IR 1, [13]. 6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [38]. 7 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300]. 8 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [22]. 9 Ibid, [40]. 10 Ibid, [41]. -- 5 of 12 -- [2020] FWC 5003 6 [29] In this regard the tribunal’s general presumption is that delays by a representative need not be visited upon a client and inexcusable delay on the part of a representative may amount to an acceptable explanation for the delay. There is a need though to distinguish between the conduct of the applicant and that of their representative. Acceptance of representative error is subject to the exercise of a discretion by the Commission. 11 [30] Boral argued that adverse inferences should be drawn from the failure of the Applicant to bring forward evidence from each of the representatives he engaged along the way. It is not necessary for me to do that since other material filed by Mr Keene provides material illuminating his pathway to this application. [31] Other than some initial contact between a union organiser and Boral, some phone calls and a meeting, Mr Keene’s contact with his union led nowhere. While they provided reassurance to Mr Keene that the union would “look after” him or his matter, he eventually lost faith in their ability to assist him; they claimed to have lost files and, were delayed with a move of premises, and eventually did not return his calls. Six months after termination, in May 2018, Mr Keene sought a meeting with the union, which did not take place until August 2018. He was told again “we will look after you”, but nothing seems to have been done as a result. [32] By at least that time, if not earlier, Mr Keene had formed the view his union was not going to help him, and he went to the first of three lawyers; however, that was not until April 2019. [33] In May and June 2019 Mr Keene’s first lawyer wrote to his union seeking advice about what they had done on what they believed were his instructions to pursue entitlements arising out of the termination of his Concrete Cartage Agreement by Boral. In July 2019 Mr Keene wrote directly to Boral following up “our recent communication regarding my Cartage Agreement Termination with Boral”. After raising a number of matters with Boral, Mr Keene stated “I still have regular contact with the drivers at Boral Bendigo & its been mentioned by Sam Needs to some drivers that I should have been given months notice or 3 months pay. This is per the Owner Drivers & Forestry Contractors Act Section Division 3, 21 Notice of termination”.12 Further, in April 2020 there is correspondence from Mr Keene’s second lawyer to Boral asserting unlawful termination, connected not with the FW Act but instead the Owner Drivers and Forestry Contractors Act 2005 (Vic) (the Owner Drivers Act) and indicating leave of the Court may be sought in order to institute out-of-time proceedings under that Act. [34] This material would indicate that while Mr Keene contested the fact that Boral no longer required the services either of him or his company, the contest was to do with whether there had been a breach of the Concrete Cartage Agreement as opposed to whether there had been an unfair dismissal of Mr Keene as an employee. There is no mention in the exchanges between the parties of employment or unfair dismissal before Mr Keene filed his unfair dismissal application on 14 August 2020. 11 See Clark v Ringwood Private Hospital (1997) 74 IR 413, at p.417; Davidson v Aboriginal & Islander Child Care Agency, unreported, Print Q0784; Cruz v Australia Post Corporation [2008] AIRCFB 452 at [35]. 12 Form F2 Unfair Dismissal Application, 14 August 2020, Attachment. -- 6 of 12 -- [2020] FWC 5003 7 [35] This consideration leads to the conclusion that there is no evidence before me of Mr Keene having unambiguously at any time before August 2020 instructed his representatives to lodge an unfair dismissal application. [36] Mr Keene may have instructed his first three representatives to lodge other proceedings. The representatives may have even advised he could commence unfair dismissal proceedings. However, there is no evidence before me either that an instruction was given by Mr Keene to lodge an unfair dismissal application, or that his first three representatives advised he could take that course at any time before the second lawyer advised on the matter at some time close to August 2020. The evidence in this matter does not clearly lead to the conclusion that something that was instructed was not done because of the conduct or inexcusable delay of any of the representatives. [37] The same may be said in relation to any actions that may have been contemplated under the Owner Drivers Act. Even though letters were written referring to that legislation and indicating leave would be sought from the Court for an out-of-time application to be made, there is no evidence that instructions were firmly given to commence such proceedings, or if such instructions were ever given, when that may have been. [38] It strikes me in listening to Mr Keene’s evidence, that he likely presented to each representative as someone in need of help, and that when they identified weaknesses in his case, or that there may be problems or costs associated with proceeding, that he did not really understand. I draw this from his oral evidence in relation to his union and first lawyer, with him recollecting that he made frequent phone calls or dropped into the office to see what was being done. That recollection is likely more consistent with a member or client who has been given advice, and probably to the effect that not much is to be done, but thinks there is still something to be done, but without really being able to be precise about what is instructed to be done. [39] Irrespective, there is no evidence that may be relied upon about firm instructions issued to the representatives, or actual errors or inexcusable delays on their part. [40] The criticisms of error Mr Keene advances are strongest in relation to his first representative, his union. He relates them saying they would “look after this for you” in December 2017; that when he queried progress with the matter two weeks later no-one had knowledge of the situation and documents had been lost, after which further time passed still with no progress. After further contact the union told him in August 2018 that they “will look after you”. The criticisms of his two lawyers, who came after the union, with the first providing services between April 2019 and January 2020 and the second from February 2020 to August 2020, do not refer to the same reassurances of “looking after the matter” as included in his comments about the union. There are no indications by Mr Keene as to the instructions he gave those lawyers. Other than the observation that time passed with nothing achieved, no error may be discerned on the part of those lawyers, or even of an accusation of error on their part by Mr Keene. [41] I am not satisfied from the evidence that Mr Keene ever issued instructions to either of his first three representatives that they were to commence an application for unfair dismissal remedy. The evidence which is before me instead leads to the conclusion that his instructions were more likely about some other action, namely to consider a challenge to the termination by Boral of its contract with Keene Transport Pty Ltd, and that the likelihood of an action -- 7 of 12 -- [2020] FWC 5003 8 pertaining to that company became unlikely when the August 2019 approaches by Mr Keene and his first lawyer were firmly rejected by Boral. [42] Even if there were evidence that instructions had been given about the commencement of an unfair dismissal action, I would be unpersuaded to accept representative error as an acceptable explanation for the delay in making an application. The delay is simply too long, and it strains credibility to think that anyone would sit waiting patiently by the phone or email inbox for months and years for confirmation that their representative had finally got around to lodging an application. It took Mr Keene at least 8 months and probably more than a year to walk away from his union. It then took him a further 8 months to walk away from his first lawyer and it took his second lawyer 7 months to advise he could not help Mr Keene. Mr Keene would have the Commission find both that he is remarkably patient as well as that the people he consulted remarkably inept or worse. The circumstances of the case in total do not allow any such findings. [43] Mr Keene was likely aggrieved when Boral decided it would provide no further work. He likely wanted to take remedial action and instructed a succession of people to take action, but until August 2020 his contemplation of action to dispute the termination appears not to have ever been for an unfair dismissal application under the FW Act. [44] It follows there was no representative error in the sense of a failure by a representative to commence proceedings under the FW Act. It follows further that Mr Keene has not provided the Commission with an acceptable explanation for the delay in making his unfair dismissal application. [45] Accordingly, my assessment is that consideration of this criterion does not resolve in favour of Mr Keene for the granting of an extension of time for the making of his application. 2. Whether the person first became aware of the dismissal after it had taken effect [46] Mr Keene became aware that Boral no longer required his services, or those of his company on 8 December 2017. This is therefore not a circumstance where the Applicant only became aware of Boral’s decision at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration. 3. Any action taken by the person to dispute the dismissal [47] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.13 [48] Mr Keene contested Boral’s decision to no longer provide him with work, with his dispute on the subject being known to the company from December 2017 and continuing at intervals throughout 2018 and 2019 and then into 2020. The actions taken by Mr Keene were within the context of the claims he considered he had, including under the Owner Drivers Act. Boral disputed that he had any entitlements under that Act, with its responses detailing why it held that view. 13 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300]. -- 8 of 12 -- [2020] FWC 5003 9 [49] While Mr Keene disputed what Boral had done, I do not hold the view that consideration of this criterion resolves in his favour. [50] It is not the case that the delay in making this application was contributed to by difficulties in resolving the dispute Mr Keene had brought to Boral’s attention; that is, he was not being held back from making this application by the other party stringing him along with promises that were never delivered upon. He made his claims to Boral which were firmly rebutted by Boral. Those claims appear to have been detailed for the first time only on 2 May 2019 and were firmly rejected by at least 20 August 2019. [51] In the following year, in April 2020, Mr Keene’s second lawyer connected his claim with the Owner Drivers Act. While it may have been the intention of the previous representatives that Mr Keene’s claims were made under that Act, such is not indicated in the written material before the Commission. [52] Even if Mr Keene had put Boral on notice in early January 2018 that he intended to make an application for unfair dismissal, that application would have required not only findings in his favour on the matter of merit but also that he was an employee and not an independent contractor. As it is, Mr Keene’s questioning about his status as an independent contractor was never raised by him with Boral until the commencement of these proceedings, lodged on 14 August 2020. [53] The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time”14 (underlining added). While certainly Mr Keene disputed his termination or that of his company this is not the same as me accepting the decision was actively contested. For the reasons indicated consideration of this criterion does not compel a finding of exceptional circumstances. 4. Prejudice to the employer (including prejudice caused by the delay) [54] The delay in the filing of the application is 921 days. The Respondent submits that it will be disadvantaged if the matter proceeds chiefly for the reason that a “key witness”, a former driver, is no longer a driver within its fleet. It is also argued that Boral has arranged its affairs on the basis that the relationship between it and Keene Transport Pty Ltd was ended. Those matters combined lead the Respondent to submit that it will therefore be unable to present its best case if the matter proceeds. [55] I accept that in this case there will be mild prejudice to the Respondent if an extension of time is granted. Consideration of this criterion resolves in favour of a finding there were not exceptional circumstances, albeit not definitively so. 5. The merits of the application [56] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal. 14 Ibid. -- 9 of 12 -- [2020] FWC 5003 10 [57] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.15 Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.16 [58] Mr Keene’s case includes that he was the victim of bullying from others over a period of time coupled with inconsistent treatment. While he was disciplined for his actions, others were not. Boral argued strongly that there was no bullying or inconsistent treatment. It also argued that Mr Keene was at all relevant times an independent contractor and not an employee; moreover, he believed such to be the case as well. [59] Mr Keene submitted in response that a full consideration of the employee/contractor indicia would lean toward him being an employee and thus him being a person protected from unfair dismissal. [60] Consideration of the material before me about the merits of Mr Keene’s case is equivocal. On the one hand, dismissal for having tipped a capful of water down the back of a fellow employee on a 38o day would appear a disproportionate sanction, but on the other, this was a man who was the subject of a prior warning for his conduct, including, allegedly, a threat to punch a plant supervisor. [61] The material about Mr Keene’s contractual status is less equivocal, and absent the factors I mention shortly, I doubt he would establish to the requisite standard that he was in fact an employee. Powerfully against a finding in Mr Keene’s favour is that at his own instigation he registered and maintained a company, Keene Transport Pty Ltd of which he was a Director drawing earnings from its profits. The company was bound to a contract comprehensively setting out their relationship. The contract allowed any driver to be used to perform works for Boral as long as the driver was approved in writing by Boral. The company purchased first one, and then a second truck as a replacement for the first, with the latter costing $49,500, including GST. Few people claiming employment status before the Commission have expended such levels of capital. [62] Against those matters would be considerations such as Mr Keene’s ability to contract to others, his Boral liveried truck and the like. The contract required that the vehicle provided by Keene Transport must be exclusively for the defined “Cartage Works” unless otherwise approved by Boral, and the vehicle must be painted with Boral’s livery. Boral’s issue of a “warning” to Mr Keene in December 2016 may also be problematic for its case; can a 15 Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14]. 16 Haining v Deputy President Drake (1998) 87 FCR 248, [250]. -- 10 of 12 -- [2020] FWC 5003 11 contracting company with rights of working for others and delegation be warned, or is that more consistent with an employment relationship? It is possible, especially in view of the Full Court judgement in Jamsek v ZG Operations Australia Pty Ltd,17 that Mr Keene could sufficiently overcome his current designation as an independent contractor. [63] While Mr Keene’s contractual status is not a matter to be determined in this decision, my concern about the claim would be that the facts seen by me about the matter would suggest its chances of success would not be likely rated above low to lower-medium, perhaps 20% to 33%. I would be concerned especially that the unusually high capital contribution may drag his case down. [64] Assuming Mr Keene persuaded the Commission he was an employee and that he was unfairly dismissed he then faces a further problem if it came to assessment of compensation. His own evidence about his loss is twofold – he or his company obtained further work within a fortnight of termination by Boral with the payments being roughly the same until recently. When he worked for Boral, his business earned between $10,000 and $14,000 per month; as an employee of Keene Transport Pty Ltd, he earned $600 per week. After leaving Boral and starting work for another business as a casual driver from 8 January 2018 (which is before the termination date Boral gave him of 15 January 2018), he earned approximately $600 – $700 per week and at some stage this year became eligible for JobKeeper payments.18 [65] The reasoning used by the Commission for the assessment of compensation would suggest that in such a case and if compensation were to be considered any amount ordered would be very low, tending to zero, after any headline compensation amount was adjusted for post-employment earnings [66] Consideration of the above factors lead me to conclude the merits of Mr Keene’s case are low and do not support a finding of exceptional circumstances such as would lead to an extension of time for the making of his application. 6. Fairness as between the person and other persons in a similar position [67] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past.19 It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.20 In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for the same underlying issue.21 [68] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Keene. 17 [2020] FCAFC 119. 18 Exhibit A1, Witness Statement of Anthony Keene, 31 August 2020, [3], [19]. 19 Wilson v Woolworths [2010] FWA 2480, [24]‒[29]. 20 Jalil v BMD Constructions Pty Ltd [2014] FWC 9357, [10]. 21 Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773, [38]. -- 11 of 12 -- [2020] FWC 5003 12 [69] As a result, Mr Keene’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision. COMMISSIONER Appearances: Ms R. Raco for the Applicant Mr L. Izzo for the Respondent Hearing details: 2020. Melbourne (via video); 11 September. Printed by authority of the Commonwealth Government Printer <PR722871> -- 12 of 12 --